Constitutional Law 1 Reviewer - Ram Notes

8/8/2019 Constitutional Law 1 Reviewer - Ram Notes

1/321

POLITICAL LAW REVIEWVOLUME I

Based on the outline of Justice Vicente V. Mendoza

April 1996 Revised Edition

_______________

Compiled by Jose Salvador Y. Mirasol

Updated by UP Law Batch 1995

Updated and Enlarged by Rodell A. Molina

UP Law Batch 1996

This revised edition is intended to further improve a previous edition of this work. Important points taken from Justice Isagani Cruz's book in Political Law have been summarized inthis work.

Special thanks to Lianne Tan for lending me her diskette in Political Law Review as updated by UP Law Batch 1995, Ma. Rosario Bernardo for digesting some of the cases in volume I, Shirley

Alinea for lending me her notes in Political Law, Non Lerrer, Buddy Carale and TJ Matta for patiently printing this work.

This work is dedicated to UP Law Batch 1996, to which I belong, most specially to Section A. May this work help us in passing Political Law this coming bar exams in September 1996.

Let us all pray for a one hundred per cent passing rate.

"To Him be the glory and honor forever."-- RAM

_______________

GENERAL INTRODUCTION

I. DEFINITIONS AND CONCEPTS IN PUBLIC LAW

A. Political Law defined


2/321

That branch of public law which deals with the organization and operation of the government organs of the state and defines the relations of the state with the inhabitants of its territory. (Sinco, Philippine PoliticalLaw 1, 11th ed., 1962)

Scope of Political Law.-- The entire field of political law may be subdivided into (a) the law of publicadministration, (b) constitutional law, (c) administrative law, and (d) the law of public corporations. Thesefour subdivisions may be briefly described for the time being, as follows: The first deals with the organizationand management of the different branches of the government; the second, with the guaranties of the constitutionto individual rights and the limitations on governmental action; the third, with the exercise of executive power inthe making of rules and the decision of questions affecting private rights; and the last, with governmentalagencies for local government or for other special purposes. (Sinco 1)

Macariola v Asuncion, 114 SCRA 77 (1982)

Spanish Code of Commerce Provision Disqualifying Judges from Engaging in Commerce is Part of SpanishPolitical Law Abrogated by Change of Sovereignty

F: The complainant alleged that respondent judge of the CFI violated paragraphs 1 and 5, Art. 14 of the Code of Commerce (w/c prohibited judges, among others, from engaging in commerce, either in person or in proxy or in thefinancial intervention in commercial or industrial companies w/in the limits of the districts) when he associated himself w/ the Traders Mftg. & Fishing Industries, Inc. as a stockholder and pres., said corp. having been organized to engage inbusiness.

HELD: Although this provision is incorporated in the Code of Commerce w/c is part of the commercial

laws of the Phils, it partakes of the nature of a political law as it regulates the relationship between thegovernment and certain public officers and employees, like justices and judges. Political law has been defined as that branch of public law w/c deals w/ the organization and operation of the governmental organs of the Stateand defines the relations of the state w/ the inhabitants of its territory. Specifically, Art. 14 of the Code of Commerce partakes more of the nature of an administrative law bec. it regulates the conduct of certain publicofficers and employees w/ respect to engaging in business; hence, political in essence.

xxx Upon the transfer of sovereignty from Spain to US, and later on from US to the Republic of thePhils., Art. 14 of the said Code must be deemed to have been abrogated bec. where there is change of sovereignty, the political laws of the former sovereign, whether compatible or not w/ those of the new sovereign,are automatically abrogated, unless they are expressly re-enacted by affirmative act of the new sovereign. There

appears to be no enabling or affirmative act. Consequently, Art. 14 of the Code of Commerce has no legal andbinding effect and cannot apply to respondent Judge. VV.

B. Constitutional Law Defined

A constitution is both a legal document and a political plan. It, therefore, embodies legal rules as well aspolitical principles. And so when we speak of constitutional law in the strict sense of the tern, we refer to the


3/321

legal rules of the constitution. xxxxxxIn the sense in w/c the concept is understood in American and Philippine Jurisprudence, constitutional

law is a term used to designate the law embodied in the constitution and the legal principles growing out of theinterpretation and application made by courts of the provisions of the constitution in specific cases. xxx

Constitutional law forms a distinct branch of jurisprudence dealing w/ the legal principles affecting thenature, adoption, amendment, and operation of the constitution. (Sinco 67.)

Types of Constitutional Law .-- In general, there are three (3) different types of constitutional law, namely,(1) the English type , characterized by the absence of a written constitution (Sinco 67)An unwritten constitution, and the power of judicial review by the courts. Thus, the courts cannot

invalidate the acts of the parliament as being unconstitutional because of "parliamentary supremacy." (Mirasolnotes.)

(2) the European continental type , where there is a written constitution w/c gives the courts no power todeclare ineffective statutes contrary to it (Sinco 67.)

A written constitution but no power of judicial review by the courts. The so-called ConstitutionalCourts of France do not exercise real judicial review but only render advisory opinions on constitutionalquestions upon the request of the government, not of parties in actual litigation. (Mirasol notes.)

(3) the American type where the legal provisions of the written constitution are given effect through thepower of the courts to declare ineffective or void ordinary statutes repugnant to it. (Sinco 67.)

A written constitution and the exercise of judicial review by the courts, which is the power of the courtsto determine the constitutional validity of the acts of legislature and other branches of government. (Mirasol

notes.)

C. Constitution Defined

It is "a law for the government, safeguarding individual rights, set down in writing." (Hamilton.)

Such a view found acceptance in the work of Tanada and Fernando:"It may be more specifically defined as a written instrument organizing the government, distributing its

powers and safeguarding the rights of the People."

From Malcolm and Laurel:"It is the written instrument by which the fundamental powers of government are established, limited

and defined, and by which those powers are distributed among the several departments for their safe and usefulexercise for the benefit of the body politic."

According to Schwartz, "a constitution is seen as an organic instrument, under which governmentalpowers are both conferred and circumscribed. Such stress upon both grant and limitation of authority is


4/321

fundamental in American theory. 'The office and purpose of the constitution is to shape and fix the limits of governmental activity.'" (Fernando, The Constitution of the Philippines, 20-21, 2nd ed., 1977.)

Types of Constitutions

Classification of Constitutions:

Constitutions are classified as follows: (1) written and unwritten, and (2) rigid and flexible.

Written and Unwritten (Classification as to when it is adopted.)

(a) A written constitution is one the provisions of w/c have been reduced to writing and embodied inone or more instruments at a particular time. The US Constitution is a classical example of a writtenconstitution.

Written constitutions have been also calledconventional or enacted

, bec. they are given definite form bya steadily constituted body, the constitutional convention, at a particular time.Written constitutions are either democratic or monarchical. Democratic constitutions essentially spring

from the authority of the people. Monarchical constitutions are those granted by a monarch as an act of grace tohis subjects. This class of constitutions are also called octroyed constitutions . They belong to the past age.

(b) An unwritten constitution is one w/c has not been committed to writing at any specific time but isthe accumulated product of gradual political and legal development. The English Constitution is the modernexample of this class.

Unwritten constitutions have been known also as cumulative or evolved , bec. they are not formulated at

any definite time but are rather the outcome of a political evolutionary process.

Flexible and Rigid Constitutions. (Classification according to amendment process.)

The classification of constitutions into written and unwritten has been considered unscientific andinaccurate bec. no written constitution, after having been applied for a considerable period, can remainsubstantially unchanged in its original condition other than by formal amendments. xxx.

To classify constitutions into rigid and flexible is to use a basis that has to do more w/ their nature ratherthan their mere form.

Rigid .-- A constitution is classified as rigid when it may not be amended except through a specialprocess distinct from and more involved than the method of changing ordinary laws. It is supposed that by sucha special procedure, the constitution is rendered difficult to change and thereby acquires a greater degree of stability.

Flexible .-- A constitution is classified as flexible when it may be changed in the same manner andthrough the same body that enacts ordinary legislation. The British Constitution is flexible.

A constitution's stability depends upon other factors than the mere rigidity or flexibility of the amendingprocess, such as (1) the general temperament of the people and their leaders and (2) the degree of a nation's


5/321

political maturity and social homogenity. (Sinco 68-70.)

The Philippine Constitution is both written and rigid (See Art. XVII on the Amendment process).

II. THE BACKGROUND OF THE PRESENT CONSTITUTION

Historical Background of the 1987 Constitution

The history of the 1987 Constitution began on 11 April 1899, the date when the Treaty of Paris betweenthe United and Spain of 10 December 1898 became effective upon the exchange of instruments of ratification of both countries. But the sources of the 1987 Constitution are (i) McKinley's Instructions to the Second PhilippineCommission; (ii) Spooner Amendment; (iii) Philippine Bill of 1902; (iv) Jones Law of 1916, otherwise known asthe Philippine Autonomy Act; (v) 1935 Constitution; (vi) 1973 Constitution and (vi) Freedom Constitution of 1986 and its implementing orders.

Treaty of Paris

Under the Treaty of Paris, the Philippines was ceded by Spain to the United States. Spain relinquishedits sovereignty over the Philippine Islands, and with this, all laws of a political nature were automaticallyabrogated.

The Treaty provided that the civil and political status of all inhabitants of the islands was to bedetermined by the US Congress.

The Philippines in turn, was not given the status of an "incorporated territory" (as to make it a candidatefor statehood) and so ex proprio vigore , the US Constitution did not apply to the Philippines unless the USCongress expressly enacted its provisions.

McKinley's Instructions

President McKinley, legislating as Commander-in-Chief, issued on 7 April 1900 his "Letter of Instruction to the Second Philippine Commission " under Taft.

It set up a "divided civil and military government" with the existing Military governor as the Executive,and a Philippine Commission, created on 1 September 1900, as the Legislative, both representing the USPresident as Commander-in-Chief.

It also extended to the Philippines all the rights in the Bill of Rights of the US Federal Constitution,except the right to bear arms (because the country was in rebellion) and the right to a trial by jury (because theAmericans distrusted the Filipinos capacity to be a just judge of his peers). The right to jury trial of anAmerican charged with a crime in the Philippines was denied by the courts in US v Dorr, 2 Phil 332 (1903) byvirtue of the Letter of Instruction.

This was the first Organic Act (a law which establishes the structure and limitations of the government)


6/321

of the Philippines. What it lacked, as a constitution, were the ratification by the people, and the right of amendment (which was reserved solely to the US President).

The judiciary was subsequently established on 11 June 1901, with a Supreme Court, Courts of FirstInstance, and Justice of Peace Courts.

Spooner Amendment

On 4 July 1901, the Spooner Amendment, which was actually a rider to the "Army and NavyAppropriations Act," changed the then "divided, military and civil government" into a fully civil government,under the US Congress. All acts of the Philippine Commission would now begin: "Be it enacted by theauthority of the US government," and no longer by authority of the US President.

Philippine Bill of 1902

The US Congress now in control of the Philippines, ratified all the organic acts of the President, in orderto prevent disruption of government, and on 1 July 1900, passed the Philippine Bill of 1902, which was to beorganic act of the Philippines from 1902 to 1906. The organic act introduced significant provisions toconstitutional history.

The Philippine Commission was the upper house. It was under the Governor-General who retained allthe executive power, including the power to suspend the writ of habeas corpus upon recommendation of thePhilippine Commission.

It established an elective lower house called the Philippine Assembly, composed entirely of Filipinos. Itcalled for the first election in the Philippines to fill up, the membership in the lower house, as soon as thePhilippine insurrection stopped and there was a condition of general peace, except in the Moro and Non-Christian provinces.

A census was taken and completed on 28 March 1903 and with a certification of peace and of Filipinoacceptance of the US government made by the Philippine Commission on 29 March 1907, the election for thePhilippine Assembly was conducted on 10 July 1907, with Osmena as speaker.

The Bill also defined for the first time who the citizens of the Philippines were. They were all theinhabitants of the Philippine islands who were subjects of Spain as of 11 April 1899, who continued to residetherein, and all the children born subsequent thereto. This definition is still good law today.

Jones Law

On 29 August 1916, the US Congress passed the Jones Law, otherwise known as the PhilippineAutonomy Act.

It established a tripartite government with real separation of powers; this was the prototype of ourpresent set-up. The executive power was in the hands of an American Governor-General, who was independent


7/321

of the Legislature, and who was given the power to suspend the writ of habeas corpus and impose martial lawwithout the recommendation of the Legislature. The Legislature was composed of the Senate and the House of Representatives, all composed of Filipinos. The judiciary continued to be made up of the Supreme Court, theCFIs and Justice of Peace Courts.

Under this set-up, while the Filipinos has all the legislative power, the Americans had all the executivepower and thus, also the control of the government. Thus, in the Board of Control (National Coal Corporation)cases, the US Supreme Court ruled, despite the dissent of Holmes and Brandeis, that the President of the Senateand the Speaker of the House could not vote the stocks of the NCC and elect its directors because this was apolitical function. Only the Governor-General could vote the government shares, said the court.

The definition of who were citizens of the Philippines first enunciated in the Philippine Bill of 1902,was carried over by the Jones Law.

Tydings-McDuffie Law

Although this was not an organic act, it is important in the constitutional history of the Philippinesbecause it was to be the enabling statute, providing the mechanism whereby the constitution of an independentPhilippines could be adopted. The law, upon its acceptance by the Senate and House of Representatives of thePhilippines, provided for (i) the calling of a Constitutional Convention to draft a Constitution for the Philippines,(ii) the adoption of a Constitution that established a republican government, with a Bill of Rights, and aseparation of church and state, (iii) the submission of the draft to the US President for certification that theConstitution was in conformity with the conditions set by the Tydings-McDuffie Law, and (iv) its ratification bythe people in a plebiscite. Complete independence was to take place ten (10) years after its effectivity.

1935 Constitution

Accordingly, on 30 July 1934, an election was held to choose the delegates to the ConstitutionalConvention. Claro M. Recto was elected President of the Convention. On 8 February 1935, the Conconapproved the draft. On 23 March 1935, the draft was certified by the President, Franklin Delano Roosevelt asconforming to the Tydings-McDuffie Law. On 14 May 1935, it was ratified by the people in a plebiscite, withthe provisions on the qualifications of the President, Vice-President and members of Congress taking effect uponratification. In September 1935, the first election under the 1935 Constitution was conducted with Manuel LuisQuezon as President and Sergio Osmena as Vice- President.

On 15 November 1935, upon the inauguration of the Commonwealth, the 1935 Constitution took effect.This Constitution was to serve as the charter of the Commonwealth, and upon withdrawal of US sovereignty, of the Republic.

The Constitution provides for a tripartite government, with the executive lodged in the President whohad a six-year term, the legislative in a unicameral National Assembly, and the judiciary in a Supreme Court,CFIs and Justice of Peace Courts as before.


8/321

In 1940, it was amended to provide for (a) a bicameral Congress with a Senate and a House of Representatives; (b) a term of four years for the President, but with re-election and (c) the establishment of anindependent constitutional body known as the Commission on Elections.

War ensued, and the Philippines was so devastated that the declaration of its independence, due 15November 1945 had to be postponed. At any rate, on 23 April 1946, the election of the first officials of thePhilippine Republic was held, and on 4 July 1946, the Republic was inaugurated and the Philippines became"politically" independent of the US.

Theoretically, to an extent that sovereignty is never granted to a people but is earned by them as theyassert their political will, then it is a misnomer to say that 4 July 1946 was the day US granted independence tothe Philippines. More appropriately, it was the day when the US withdrew its sovereignty over the Philippines,thus giving the Filipino people an occasion to assert their own independence.

But not "economically". On 30 April 1946, one week after the election, the US Congress passed theBell Trade Act which would grant Philippine prime exports entry to the US free of customs duties from 1946 to1954, and a gradual increase in duties from 1954 to 1974 (Laurel-Langley agreement), provided that thePhilippines would grant US citizens and corporations the same privileges, and in addition, the right to explorenatural resources of the Philippines in parity with the Filipinos, and to operate public utilities. This must beaccepted by Congress, embodied in an Executive Agreement, and reflected as an amendment in the Constitution.

The Senate approval of this bill gave rise to the case of Vera v Avelino, 77 Phil 192 (1946). The Senatethen had 11 Nacionalistas and 13 Liberals. Three Nacionalista Senators-elect (Vera, Diokno and Romero),known to be against the Bell Trade Act, were prevented by the rest of the Senate, in what is known as "exclusionproceedings," on grounds that their elections were marred with fraud. The political motivation was clear but theSC was conned into lifting the injunction it issued for the withholding of the suspension, because of theunfulfilled promise that the Senate would not carry out the suspension. With the balance of power offset, theBell Trade Act was passed. Subsequently, the SC had to dismiss the petition on the ground that the principle of separation of powers, it could not order a co-equal branch to reinstate a member.

The Senate authorized President Roxas to enter into an Executive Agreement, which he did on 3 July1946, the eve of the declaration of Philippine Independence.

Then came the amendment of the Constitution in order to include the Parity Rights Agreement, whichgave rise to the case of Mabanag v Lopez Vito, 78 Phil 1 (1947). Under the Amendatory Provisions of the 1935Constitution, Congress, acting as constituent body, needed 3/4 vote to propose an amendment to the Constitu-tion. But with the three Senators still suspended, only the 21 remaining were used as the basis for computing the3/4 requirement. When this was raised in court, it begged off from ruling on the ground that it was a politicalquestion. It also used the Enrolled Bill Theory.

So with the amendment proposed, it was subsequently ratified on 5 March 1947.

The third time the Constitution was amended (1940, 1947) was in 1967. A Resolution of both housesprovided for (a) the amendment of the Constitution by a Convention, (b) the increase of seats in the House of


9/321

Representatives to make the Concon sufficiently representative, and (c) allowing members of the House as dele-gates without forfeiting their seats. The first was approved, the second and third were rejected. This became thesubject matter of Gonzales v COMELEC.

Election of delegates to the Concon took place on 10 November 1970. Then the ConCon met on 1 June1971. Before it finished its work, it came up with a resolution calling for an amendment to the 1935 Constitutionreducing the voting age from 21 to 18, so that a wider base could vote in the ratification of the Constitution thenbeing drafted. A plebiscite was set by the COMELEC for 8 November 1971 but this was enjoined by the SC inthe case of Tolentino v COMELEC, the court ruling that a piece-meal amendment was not allowed by the 1935Constitution since it provided that the amendments were to be ratified at "an election" which meant only oneelection. The Court upheld its jurisdiction over the ConCon by arguing that since the Concon derived its powerfrom the Constitution, it was thus limited by the Constitution.

But it was subsequently overtaken by Martial Law. On 30 November 1972, the Convention submitted its"draft" to the President, who called on a plebiscite to ratify the Constitution. This was questioned in the case of Planas v COMELEC, 49 SCRA 105 (1973) on the ground that there can be no freedom of expression underMartial Law. But the case was rendered moot and academic when the President cancelled the plebiscite andinstead held a citizens' assembly on 10 to 15 January, 1973. On 17 January 1973, the President came up with aproclamation that the Constitution had come to full force and effect after its overwhelming ratification by thepeople in a viva voce vote.

1973 Constitution

The validity of the ratification process was questioned in the case of Javellana v Executive Secretary, 50SCRA 30 (1973) but the failure of the SC to come up with the necessary votes to declare the act asunconstitutional forced it into the conclusion that "there are no further obstacles to considering the constitutionin force and effect."

The 1973 Constitution was amended four times.

The first, in 1976, gave the President, legislative powers even if the Interim Batasang Pambansa wasalready operating.

The second, in 1980 was not significant. It merely raised the retirement of justices of the SC from 65 to70 as to keep Fernando for five more years.

The third, in 1980 changed the form of government from Parliamentary to Presidential.

The fourth, in 1984, responded to the succession problem by providing for a Vice-President.

The start of the end of the Marcos years, of course, could be treated as early as 21 August 1983. But itsimmediate precursor was the Snap Election which the President was forced to call and set on 7 February 1986 to


10/321

respond to the clamor for popular mandate.

The validity of the "Snap Election Law" called by the Batasang Pambansa was raised in the case of Philippine Bar Associa tion v COMELEC , 140 SCRA 455 (1985). The issue was raised because of theconditional letter of resignation sent by Mr. Marcos to the Batasan, making his resignation effective only upon(i) the holding of a Presidential election, (ii) the proclamation of a winner, (iii) the assumption into office by thewinning candidate. It was contended that a conditional resignation was not allowed under the 1973Constitution, for it did not create a vacancy, and without a vacancy, there was no reason to call for an election.But the SC failed to issue a preliminary injunction to enjoin the COMELEC from preparing for the election, thusmaking "the initially legal question into a political one." In the meantime, the political parties have startedcampaigning and the people were so involved in the election that to stop it on legal grounds would frustrate theirvery will. And so, failing to come up with the majority to hold the Snap Election Law unconstitutional, the SCcould not issue the injunction prayed for. The election went ahead.

The rest is history. The results of the election were proclaimed by the Batasan, naming Marcos andTolentino as the winners. But the February 2 to 25, 1986, EDSA revolution took place. On 25 February, Marcoswas proclaimed in Malacanang by Makasiar, while Aquino was proclaimed in Club Filipino by Teehankee.Later that evening, Marcos fled to Hawaii.

A. The February 1986 Revolution and the Proclamation of Provisional Constitution.

Freedom Constitution

What was the basis of the Aquino government? Did it assume power pursuant to the 1973 Constitution,or was it a revolutionary government?

Proclamation No. 1, 25 February 1986 (Provisional government).-- But Proclamation No. 3 whichannounced the Provisional Constitution, seemed to suggest that it was a revolutionary government, since in oneof its whereases it announced that the "new government was installed, through a direct exercise of the power of the Filipino people assisted by units of the New Armed Forces," referring to the EDSA revolution.

The better view is the latter view. The Aquino government was not an offshoot of the 1973 Constitutionfor under that Constitution, a procedure was given for the election of the President --- proclamation by theBatasan --- and the candidate Batasan proclaimed was Marcos.

Lawyers League v Aquino (GR Nos. 73748, 73972 & 73990, May 22, 1986).-- This view was affirmedin Lawyers League v Aquino where the legitimacy of the Aquino government is questioned on the ground that itwas not established pursuant to the 1973 Constitution. The SC ruled that petitioners had no personality to sueand their petition states no cause of action. "For the legitimacy of the Aquino government is not a justiciablematter. It belongs to the realm of politics where only the people of the Philippines are the judge. And thepeople have made the judgment; they have accepted the government of President Aquino which is in effectivecontrol of the entire country so that it is not merely a de facto government but in fact and law a de jure


11/321

government. Moreover, the community of nations has recognized the legitimacy of the present government. Allthe eleven members of this Court as reorganized, have sworn to uphold the fundamental law of the Republicunder her government."

The Aquino government was a result of a "direct state action." It was not as if a small group revoltedand succeeded in wresting power in the end. Rather, the entire state revolted and overthrew the government, sothat right from the beginning, the installation was already lawful and the government was at all times de jure .

In this regard, it must be noted that there is no such thing as a constitutional right of revolution. Arevolution, from the point of view of a State, is always lawful since a State can never go wrong; it can change itsgovernment in whatever way the sovereign sees fit. But this right of revolution, inherent in sovereignty, cannotbe recognized in a Constitution, for this would be self-destructive. The nature of a Constitution is to set-up agovernment and provide for an orderly way to change this government. A revolution contradicts this nature.

Proclamation No. 3, March 25, 1986 (Provisional Constitution).-- At any rate, the ProvisionalConstitution or Freedom Constitution was adopted on 25 March 1986 through Proclamation No. 3. It abrogatedthe legislative provisions of the 1973 Constitution, modified the provisions regarding the executive department,and totally reorganized the government. (Its use of the 1973 Constitution, however, is not be to construed that itwas a continuation thereof.) Then it provided for the calling of a Constitutional Commission, composed of 30 to50 members appointed by the President within 60 days. (In our history, all major constitutions --- Malolos,1935, 1971 --- were drafted by elected delegates.)

The President appointed 48 Commissioners, who worked on the Constitution from 1 June to 15 October1986. The draft was submitted to the people in a referendum on 2 February 1987. On 11 February 1987, thePresident, through Proclamation No. 58, announced its overwhelming ratification by the people and that,therefore, it had come into force and effect.

In Re: Saturnino Bermudez (145 SCRA 160)(1960).-- In the case of In Re: Saturnino Bermudez , the SCheld, quoting the previous case of Lawyers League v Aquino, that:

[T]he legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the people of the Philippines are the judge. And the people have made the judgment;they have accepted the government of President Aquino which is in effective control of the entire countryso that it is not merely a de facto government but in fact and law a de jure government. Moreover, thecommunity of nations has recognized the legitimacy of the present government. All the eleven membersof this Court as reorganized, have sworn to uphold the fundamental law of the Republic under her

government.

B. Adoption and Effectivity of the present Constitution

Provisional Constitution, Art. V.

ARTICLE V


12/321

ADOPTION OF A NEW CONSTITUTION

Section 1. Within sixty days from the date of this Proclamation, a Commission shall be appointed by the

President to draft a New Constitution. The Commission shall be composed of not less than thirty nor more than

fifty natural born citizens of the Philippines, of recognized probity, known for their independence, nationalism and

patriotism. They shall be chosen by the President after consultation with various sectors of society.

Section 2. The Commission shall complete its work within as short a period as may be consistent with the

need both to hasten the return of normal constitutional government and to drat a document truly reflective of the

ideals and aspirations of the Filipino people.

Section 3. The Commission shall conduct public hearings to insure that the people will have adequate

participation in the formulation of the New Constitution.

Section 4. The plenary sessions of the Commission shall be public and recorded.

Section 5. The New Constitution shall be presented by the Commission to the President who shall fix the

date for the holding of a plebiscite. It shall become valid and effective upon ratification by a majority of the votes

cast in such plebiscite which shall be held within a period of 60 days following its submission to the President.

1987 Constitution, Art. XVIII, sec. 27.

Art. XVIII, Sec. 27. This Constitution shall take effect immediately upon its ratification by a

majority of the votes cast in a plebiscite held for the purpose and shall supersede the all previous

Constitutions.

The foregoing proposed Constitution of the Republic of the Philippines was approved by the

Constitutional Commission of 1986 on the twelfth day of October 1986, and accordingly signed on the

fifteenth day of October 1986 at the Plenary Hall, National Government Center, Quezon City, by the

Commissioners whose signatures are hereunder affixed.

Proclamation No. 58 (Proclaiming the Ratification of the 1987 Constitution), February 11, 1987

De Leon v Esguerra, 153 SCRA 602 (1987.)

The 1987 Constitution took effect on 2 February 1987 .

F: The case arose due to Art. III, Sec. 2 of Proclamation No. 3, which provided that: "All elective and appointiveofficials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation orexecutive order or upon the designation or appointment and qualification of their successors, if such appointment is madewithin a period of one year from 25 February 1986."

De Leon was a barrio captain in Taytay, Rizal. On 9 February 1987, he was replaced by the MLG (DLG). So thequestion arose as to when the 1987 Constitution took effect. If it took effect on 2 February, the replacement was no longer


13/321

valid, since Proclamation No. 3 would have been superseded. But if it took effect on 11 February (the date of proclamation), the replacement would have been valid.

The SC, consulting the proceedings of the Concom, ruled that the intent of the framers of theConstitution was to make it effective on the date of its ratification. Art. XVIII, Sec. 27 clearly provided that"this Constitution shall take effect imme diately upon its ratification by a majority of the votes cast in the

plebiscite." The 1987 Constitution was ratified in a plebiscite on Feb. 2, 1987, superseding the ProvisionalConstitution. Consequently, after that date, respondent OIC Governor could not designate respondents to theelective positions occupied by petitioners. Petitioners must now be held to have acquired security of tenure.

The dissenting opinion pointed out that by contemporaneous construction, the 1973 Constitution had asimilar provision as the present one in issue (Art. XVII, Sec. 16, This Constitution shall take effect immediatelyupon its ratification by a majority of the votes cast in a plebiscite), and yet it took effect on the day of theproclamation. The 1981 and 1984 amendments contained similar provisions (valid when approved), and yet thepractice has always been to make the date of proclamation, the date of effectivity.

Furthermore, if the effectivity was 2 February, then the appointments made by the President to CA postsafter that date would be invalid for they were not submitted to the Judicialand Bar Council. On this point, however, Teehankee noted that the President issued the appointments in the endof January.

A concurring opinion noted the debate between Davide (date of proclamation) and Bernas (date of ratification), and Davide's comment that he was giving up due to tyranny of numbers.

VV: The SC was correct for that was the clear intent of the framers. The ones to be blamed are theframers themselves. Effectivity should really be the date of proclamation.

One, how can one can be expected to comply with the provisions of the Constitution when, prior to itsproclamation, there is no way to determine if it has been ratified or not? Should the Director of Prison continuethe scheduled electrocution of a death row convict on 3 February in view of the abolition of capital punishmentin the 1987 Constitution; if he does, he would technically be violating the constitution under the above holding.If he does not, he would be in dereliction of duty, in case the constitution is not ratified.

Two, no analogy can be made between the election to office of a public officer who is deemed electedon the day of election), and the effectivity of the constitution, because a public officer, though deemed elected,does not assume office on the day of his election, not even on the day of his proclamation.

III. THE SUPREMACY OF THE CONSTITUTION AND THE ROLE OF THE COURTS

A. Theory of Judicial Review

Angara v Electoral Commission, 63 Phil 139 (1936). In 1935, the National Assembly


14/321

adopted a resolution that "all members- elect, with no election protest filed on or before 3 December 1935 aredeemed elected." The Electoral Commission, a constitutional body, on the other hand set the 9 December 1935as the deadline for the filing of election protest.

Ynsua, who lost to Angara, filed a motion of protest (complaint) on 8 December 1935. This wasentertained by the Electoral Commission. Angara contended that the deadline set by the National Assembly wascontrolling. Who prevailed?

The SC, through J. Laurel, ruled for Ynsua, thereby upholding the authority of the ElectoralCommission, in view of the constitutional provision granting the Electoral Commission jurisdiction over electionprotests.

In justifying the power of judicial review, J. Laurel pointed out that when the court allocatedconstitutional boundaries, it neither asserts supremacy, nor annuls the acts of the legislature. It simply carriesout the obligations imposed upon it by the constitution to determine conflicting claims and to establish for theparties the rights which the constitution grants to them.

Conditions for the Exercise of Judicial Review

In People v Vera, 66 Phil 56 (1937), J. Laurel laid down the doctrine that judicial review can only beexercised in an actual case and controversy .

This means (1) a party with a personal and substantial interest, (2) an appropriate case, (3) aconstitutional question raised at the earliest possible time, and (4) a constitutional question that is the very lismota of the case, i.e. an unavoidable question.

Seven (7) rules of avoidance of constitutional questions (J. Brandeis) :

In the following cases, the court must refrain from passing on the issue of constitutionality or fromexercising judicial review:

1. Friendly, non-adversary proceedings. (no vital conflict)2. Anticipation of a question of constitutional law in advance of the necessity of deciding it. (premature

case)3. Formulation of a rule broader than is required by the precise facts to which it is applied.4. Existence of other grounds upon which the case may be disposed of (not the very lis mota )5. A complaint made by one who fails to show injury as to its operation. (no standing)6. Instance of one who has availed himself of its benefit.7. Possibility of a construction of the statute which can avoid the resolution of the constitutional

question.

Policy of strict necessity (Rescue Army case)


15/321

The court must, as much possible, refrain from exercising judicial review unless all the requirements forits exercise are fulfilled because of :

1. The danger of exercising the function, in view of possible consequences for others stemming alsofrom constitutional roots.

2. Comparative finality of those consequences.3. Consideration due to the judgment of the other repositories of constitutional power concerning the

scope of their authorities.4. Necessity for each to keep within its own power.5. Inherent limitations of the judicial process - its largely negative character, and its limited resources for

enforcement.6. Withal in paramount importance of constitutional adjudication.

Thus, the following must be avoided: (i) political questions, (ii) advisory opinions, (iii) moot andacademic issues, and (iv) no standing.

Political Question

An issue is a political question when it does not deal with the interpretation of a law and its applicationto a case, but with the very wisdom of the law itself. When a judge attempts to resolve a political question, he isnot exercising a judicial function, but is rather supplanting his conscience to that of the political branch of thegovernment.

Baker v. Carr, 369 US 186 (1962) has attempted to formulate some guidelines for determining whether aquestion is political or not.

Prominent on the surface of any case held to involve a political question is found a textuallydemonstrable constitutional commitment of the issue to a political department; or a lack of judiciallydiscoverable and manageable standards for resolving it; or the impossibility of deciding without an initialpolicy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court'sundertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unequestioning adherence to a political decision already made, or thepotentiality of embarrassment from multafarious pronouncements by various departments on onequestion.

Advisory Opinion

A case becomes an advisory opinion when there is no actual case and controversy that demandsconstitutional construction for its resolution. This may take the form of declaratory relief. It is not wise for thecourt to engage in an advisory opinion because:

a) This only leads to dialectics, to abstract legal arguments and sterile conclusions (Laurel quoting


16/321

Frankfurter)b) The judicial function is impoverished since it thrives on facts that draw out the meaning of the law.

Mootness

A case becomes moot when there are facts, injuries and heated arguments but for some reason the legalproblem has become stale. When a case is moot and academic, it ceases to be a case and controversy. Anydecision reached by the court would not be conclusive on the parties.

Exceptions to mootness:1) If the question is capable of repetition and evasive of review.2) If there exits a mere possibility of collateral legal consequences if the court does not act.3) Voluntary cessation from the wrongful act by the defendant, if he is free to return to his old ways.

Ripeness

A constitutional question may come to the court either too early or prematurely, so that it is still abstract(advisory opinion), or too late, so that the court's decision would no longer affect the parties (mootness). Thecourt must resolve constitutional issues only when they come to it at the right time (ripeness).

No Standing

A party has a standing in a case if his interest is such that he stands to be benefited if the case is resolvedin his favor, and he stand to be really injured if it is decided against him.

Standing is established by two nexuses: the party's status and the type of legislative act beingquestioned, or his status and the precise nature of the constitutional infringement.

The test of standing is whether the party has alleged such a personal stake in the outcome of thecontroversy as to assure such concrete adverseness which sharpens the presentation of issues upon which thecourt so largely depends for illumination of difficult constitutional questions (Baker v Carr, supra.)

A person has standing to challenge the governmental act only if he has a personal and substantial interestin the case such that he has sustained, or will sustain, direct injury as a result ot its enforcement. (People v. Vera,infra.)

Philippine Practice

In re Saturnina Bermudez (145 SCRA 160, 1986)

The action was for declaratory relief to interpret Section 5 of Art. XVIII, which provides that: The sixyear term of the incumbent President and Vice-President elected in the 7 February 1986 election, is for purposesof synchronization of election, hereby extended to noon of 30 June 1991. The question was who the "incumbent


17/321

President" referred to in said provision was --- whether Aquino (the one in office) or Marcos (the oneproclaimed by the Batasan). The confusion arose because in Proclamation No. 3, Pres. Aquino referred to the"direct exercise of the power of the Filipino people assisted by the units of the new AFP" as the cause for theinstallation of the new government. If President Aquino was not elected but came into office as a result of theEDSA Revolution, the she would not be the "incumbent" who was elected in the February 7 election, referred toin the provision.

The SC ruled that (a) the petitioner had no standing, (b) the SC had no jurisdiction over petitions fordeclaratory relief, c) the suit was against the President who cannot be sued, d) the petitioner had no cause of action because, reiterating the decision in Lawyer's League for a Better Philippines v Aquino, the legitimacy of the Aquino government is not a justiciable matter but is a political question.

And yet, the SC ruled that the "incumbent" referred to was President Aquino who was in effectivecontrol of the country and had been recognized by the rest of the world.

(The Court, disregarding the limits of judicial review, felt compelled to render a decision on thelegitimacy of the Aquino government so as to avoid any doubt as to its very own legitimacy. It must be noted,though that his case is the entitlement of an actual case and controversy.)

Dumlao v COMELEC (95 SCRA 392)

Section 4 of BP 52 provided that any retired elective local official who had received retirement pay towhich he was entitled under the law and who have been 65 years old at the commencement of the term of officeto which he sought to be elected, was not qualified to run for the same elective local office from which he hadretired.

Dumlao filed for prohibition to enjoin the enforcement of the law, claiming that this was directed at himas former governor of Nueva Vizcaya.

The SC held that (a) he had no standing, since he had not been injured by the operation of the law, nopetition for his disqualification having been filed and (b) the action was a request for advisory opinion. And yet,the SC upheld the validity "because of paramount public interest", declaring that the legislative purpose of infusing younger blood in local government was valid. Adapted.

Igot v COMELEC (95 SCRA 392)

Sec. 4 of BP 52 also provided in part that any person convicted of subversion, insurrection or rebellion,or similar offenses was disqualified from running for any local position, and the filing of charges for such crimesbefore a civil or military court after preliminary investigation was prima facie evidence of such fact. Igot soughtto question the validity of this provision.

The SC held that he had no standing because (a) he had never been convicted nor charged of any thesecrimes, (b) he had not been disqualified from being a candidate, (c) he had no personal nor substantial interest atstake, and (d) he could not sue as taxpayer since the statute did not directly involve the disbursement of publicfunds.


18/321

And yet, although abstaining from ruling on the first part of the provision, the SC held that the secondpart regarding the presumption of guilt was unconstitutional for violating the presumption of innocence.

Political Questions

In PBA v COMELEC, 140 SCRA 455, we see a reversal of judicial review. The case was clearly a justiciable controversy. Is the resignation submitted by Marcos, which was conditioned on the election,proclamation and assumption into office by the elected President, a valid resignation as to authorize the Batasanto pass a Snap Election Law? The Court could have validly issued an injunction to stop the COMELEC fromproceeding with the preparations for the election. But it did not, citing its delay in deciding the case and thesentiments of the people that developed in the meantime as reason for its inaction. According to the court, what

at first was a legal question became a political question because it was overtaken by events.

VV: A Court which does not issue an injunction to enjoin an official act when it could have issued oneis actually deciding the case in favor of the validity of the act. Failure to issue an injunction is as much anexercise of judicial review.

In Romulo v Yniguez, infra , we see another trend of judicial review. What seems like a legal questionwhen viewed in isolation (namely, whether the rules of the Batasan enabling it to shelf a complaint forimpeachment against the President is constitutional.) is really a political question when viewed in a broadercontext (i.e., that the case was filed against the Speaker of a co-equal branch to compel him by mandamus to

recall the complaint from the archive, and that the ultimate result of the case was to question the decision of theBatasan to shelve the case, a matter, that is solely committed to that department.)

Yet, despite the really political nature of the question, the SC passed on the validity of the rules to erasedoubts that may still be entertained.

C. Functions of Judicial Review

1. Checking - invalidating a law or an executive act that is found to be contrary to the Constitution.

2. Legitimating (legitimizing) - upholding the validity of the law which results from a mere dismissal of a casechallenging the validity of that law.

When the Court exercises this function, it uses the double negative by declaring that the law is "notunconstitutional". This is no mere semantics. The Court cannot declare the law constitutional for it enjoys thepresumption of constitutionality, so that a declaration to that effect by the court would not make it moreconstitutional. On the other hand, anyone who challenges the validity of a law has the burden of proof to show


19/321

its invalidity. Declaring that the law is not unconstitutional is tantamount to saying that the challenger has notmet the burden required.

Legitimating and Checking Aspects of Judicial Review. Dismissal of Challenge to a Law's Validity Legitimizesit.

In Occena v COMELEC, 104 SCRA 1 (1981), which sought an injunction to prohibit the COMELECfrom proceeding with the plebiscite for the proposed 1981 amendments, and in Mitra v COMELEC, 104 SCRA59 (1981), which sought a mandamus to compel the COMELEC to hold a plebiscite to ratify the 1973Constitution, both prayers based on the premise that the 1973 Constitution had not been ratified, the SC held thatthe failure of the Court in the Javellana v Executive Secretary case to muster the votes required to declare the1973 Constitution as being invalidly ratified, which resulted in the dismissal of the suit questioning the validityof the ratification of the Constitution, in effect legitimated the ratification. In Occena, the Court ruled that:

"The Supreme Court can check as well as legitimate. In the latter case, there is an affirmationthat what was done cannot be stigmatized as constitutionally deficient. The mere dismissal of a suit of this character suffices. That is the meaning of the concluding statement in the Javellana resolution.Since then, the Court has invariably applied the present Constitution."

3. Symbolic - to educate the bench and bar as to the controlling principles and concepts on matters of greatpublic importance.

Symbolic Function of Supreme Court to Give Guidelines to Bench and Bar in Cases which are Moot and Academic.

In Salonga v Cruz-Pano, 134 SCRA 438 (1985), the case against petitioner for subversion which wasfiled by the fiscal on the basis of flimsy testimony given by Victor Lovely was already dismissed withoutprejudice by the fiscal (upon anticipation of adverse ruling). And yet, the SC noting that as the fiscal said thedismissal of the charges was without prejudice to the filing of new ones for the same acts because the petitionerhas not been arraigned and double jeopardy does not apply, the case is not entirely moot, decided to perform itsduty to "formulate guiding and controlling constitutional principles, precepts and doctrines or rules" for theguidance of the bar and bench. It thus, went on to lecture about its antiquated understanding of the inciting test,and how it could not be proved by a mere photograph.

In Javier v COMELEC, 144 SCRA 194 (1986), the case was already mooted not only by the death of Evelio Javier, but also by the abolition of Batasan, the Antique seat which he and Pacificador were contestingfor. And yet the SC, claiming to be "not only the highest arbiter of legal questions but also the conscience of thegovernment," decided the case anyway "for the guidance of and as a restraint upon the future. The citizen comesto us in quest of law but we must also give him justice. The 2 are not always the same. There are times when wecannot grant the latter bec. the issue has been settled and the decision is no longer possible according to the law.But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to beresolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but


20/321

also for the guidance of and as a restraint upon the future."In Demeteria v Alba, 148 SCRA 208, the SC struck down Sec. 44 of PD 1177, authorizing the President

to transfer funds from one department to another, on the ground that it overextended the privilege granted underArt. VIII, sec. 16(5) of the 1973 Constitution, even if such provision was already abrogated by the FreedomConstitution. Then, citing the Javier case on the need "not only for the vindication of an outraged right, thoughgone, but also for the guidance of and as a restraint upon the future," it lectured on how this law would open thefloodgates for the enactment of unfunded appropriations, uncontrolled executive expenditures, diffusion of accountability for budgetary performance, and entrenchment of the pork barrel system, and on how this wouldcreate temptations for misappropriation and embezzlement.

All courts can exercise judicial review

Art. VIII, Sec. 5(2). The Supreme Court shall have the following powers:

xxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of

Court may provide, final judgments and orders of lower courts in :

(a) All cases in which the constitutionality or validity of any treaty, international or executive

agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in

question.

(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed

in relation thereto.

(c) All cases in which the jurisdiction of any lower court is in issue.

(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.

(e) All cases in which only an error or question of law is involved.

The review power of the SC implies that it has appellate jurisdiction over final judgments of lowercourts on cases with constitutional issues. If so, inferior courts have original jurisdiction over constitutionalcases although they decide the case only at first instance, their decision being always reviewable by the SC.Thus, for instance an RTC can rule on the constitutionality of the Anti-Subversion Law.

In J.M. Tuason & Co. v CA, 3 SCRA 696 (1961), RA 2616, which provided for the expropriation of theTatalon Estate, was claimed to be unconstitutional. This issue said the SC, could be resolved by the CFI in theejectment case filed before it by the evictees of the estate, since the 1935 Constitution contemplated that inferiorcourts should have jurisdiction in cases involving constitutionality issues, that it spoke of appellate review of "final judgment of inferior courts" in cases where such constitutionality happens to be in issue. The 2/3 vote of the SC required by Sec. 10 of Art. VII restricted the decisions of that Court only in the exercise of its appellate

jurisdiction.

In Ynot v IAC, 148 SCRA 659, the SC reversed the RTC's holding that it had no authority to rule on thevalidity of EO 626-A, banning the transporting of carabaos from one province to another. The Court pointedout, that since it has jurisdiction to review, revise, reverse, modify or affirm final judgments of lower courts in


21/321

constitutional cases, then the lower courts can pass upon the validity of a statute in the first instance.

The SC then struck down the law for being arbitrary and for unduly delegating legislative power.

C. Effect of a Declaration of Unconstitutionality

Civil Code, Art. 7.

Article 7. xxx

When the courts declare a law to be inconsistent with the Constitution, the former shall be void

and the latter shall govern.

xxx

The effect of a declaration that a law is unconstitutional is to make the law either void or voidable.

It is void if on its face, it does not enjoy any presumption of validity. As such, it produces no effectwhatsoever, creates no right or office, it imposes no duty. Whatever penalty was paid during the period of itsoperation must be remitted.

An example is BP 52 in Igot v COMELEC case, supra , providing that anyone who has been charged of rebellion, etc. is prima facie presumed to be disqualified from running for a local post. On its face, it blatantlygoes against the constitutional presumption of innocence.

Another example is a law imposing prior restraint which is, according to Sullivan v Bantam Books, and

US v New York Times, presumptively unconstitutional.

But a law declared unconstitutional is only voidable if, on its face, it enjoys the presumption of validity.In this case, it becomes inoperative only upon the judicial declaration of its invalidity. And even so, theinvalidation produces no retroactive effect, since it would be unjust to hold that the law did not produce anyeffect at all prior to its nullification. From the time the law was promulgated to the time it was declared invalid,people would have entered into various transactions and relations, expecting and in fact compelled to presumethat the law is valid. Thus, to now hold that the law never produced any effect would penalize those who in faithbelieved the laws passed by their representatives to be in accordance with their solemn duty under theConstitution.

As the court put it in Chicot County District v Baxter State Bank, the past cannot always be erased, sothat statements of principle of absolute retroactivity is not acceptable in all cases. Said the court,

"[T]he actual existence of a statute, prior to such determination, is an operative fact, and mayhave consequences which cannot justly be ignored. The past cannot always be erased by a new judicialdeclaration. The effect of the subsequent ruling as to invalidity may have to be considered in variousaspects with respect to particular relations, individual and corporate, and particular conduct, private andofficial. xxx "


22/321

The case of Serrano de Agbayani v PNB, 38 SCRA 429 (1971) is in point.

In 1939, Agbayani borrowed P450 from PNB secured by a realty mortgage. In 1944, the loan maturedbut PNB could not collect because it was at this time of the war. In 1945, Pres. Osmena issued the Debt Morato-rium Law (EO #32), suspending the payment of loans for four years due to the ravages of war. In 1948, RA 342extended the Debt Moratorium Law for another eight years (up to 1956). In 1953, however, the SC declared RA342 as unconstitutional in the case of Rutter v Esteban. In 1959, PNB filed a suit for payment of the loan. Hasthe action prescribed?

If we take the orthodox view, the action has prescribed, since the declaration of RA 342 as uncon-stitutional retroacted to 1945 when EO 32 was first issued. Between 1944 when the loan matured and 1959, whenPNB collected the loan, 15 years had elapsed.

[The orthodox view was announced by Mr. J. Field, in the case of Norton vs. Shelby County where thecourt held that:

"xxx. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords noprotection; it creates no office; it is, in legal contemplation, inoperative, as if it had not been passed. ]

But if we take the unorthodox view, as the SC did, the action could still prosper. The period from 1945when the law was promulgated, to 1953 when it was declared unconstitutional should not be counted for thepurpose of prescription since the Debt Moratorium Law was operative during this time. In effect, only 7 yearshad elapsed (1944-45, 1953-59).

Indeed, it would be unjust to punish the creditor who could not collect prior to 1953 because the DebtMoratorium Law was effective, only to be told later that his respect for an apparently valid law made him losehis right to collect.

Art. 7 of the Civil Code which provides that, "When the courts declare a law to be inconsistent with theConstitution, the former shall be void and the latter shall govern." seems to be the orthodox view on the matter.

CONSTITUTIONAL LAW

________________

PART ONE


23/321

THE PHILIPPINES AS A STATE

I. State defined.

CIR v Campos Rueda, 42 SCRA 23 (1971). A State is a politically organized sovereign community,independent of outside control, bound by ties of nationhood, legally supreme within its territory, and actingthrough government functioning under a regime of law.

A state is a community of persons, more or less numerous, permanently occupying a fixed territory andpossessed of an independent government organized for political ends to which the great body of inhabitantsrender habitual obedience. (Prof. Samilo Barlongay quoting Garner, Introduction to Political Law, 41.)

The elements of a state are : territory, people, sovereignty, government.

People refers simply to the inhabitants of the State.

Territory is the fixed portion of the surface of the earth inhabited by the people of the State.

Government is the agency or instrumentality through which the will of the State is formulated, expressedand realized.

Sovereignty is the supreme and uncontrollable power inherent in a State by which that State is governed.

II. Components of the Philippine State

A. Territory-- The Archipelago Concept

Art. I. The national territory comprises the Philippine archipelago, with all the islands and waters

embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction,

consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil,

the insular shelves, and other submarine areas. The waters around, between, and connecting the islands

of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the

Philippines.

In short, the Philippine territory consists of: (1) the Philippine archipelago, and (2) all territories overwhich the Philippines has sovereignty or jurisdiction.

Of all the constitutions in the world, probably only the Philippines has a definition of its territory. Atfirst glance, this is useless since one's territory under International Law is defined not by one's self-servingclaims as to what it covers, but by international treaties and customs. Historically, however, this definition had a


24/321

valid purpose.

The 1935 Constitution needed to define Philippine territory in order to prevent its dismemberment bythe US. Since, pursuant to the Tydings-McDuffie Act, the draft of the Constitution was to be submitted to the USPresident for approval, defining the national territory was a way of making the US acknowledge its extent and(to) respect its integrity.

The 1973 Constitution needed a definition of national territory in order to lay claim toSabah. The claim was originally made by President Macapagal. Sabah was one of the territories belonging tothe Philippines by historic right and legal title. President Marcos, in 1977 on the occasion of an ASEANMinisterial Meeting in Singapore announced that the Philippines was willing to drop its claims over Sabah;nothing was done, however to amend the Constitution.

The 1987 Constitution changed the phraseology into: "all other territories over which the Philippines hassovereignty or jurisdiction." In so changing, the rationale was to remove any irritant to our relations with theMalaysia brought about by the 1973 formulation but without renouncing the claim at the same time. Anyway, if the Philippines has the right over Sabah under International Law, it possesses that right with or without aConstitution, the Constitution being merely a municipal law which does not bind other states.

The 1987 Constitution, therefore, contains a definition of national territory so as not to give animpression that the Philippines is abandoning its claim over Sabah. Removing such a definition would amountto dropping the claim altogether, a fact not for the Commissioners to decide.

1. The Philippine Archipelago

a. Treaty limits

1. Treaty of Paris of 10 December 1898.

Article 3 defines the metes and bounds of the archipelago by longitude and latitude, degrees andseconds. Technical descriptions are made of the scope of the archipelago as this may be found on the surface of the earth.

2. Treaty of Washington of 7 November 1900 between the United States and Spain.

Ceding Cagayan, Sibuto and Sulu.

3. Treaty of 2 January 1930 between the United States and Great Britain.


25/321

Ceding the Turtle and Mangsee Islands.

b. Method of determining the baselines

1. RA 3046 (17 June 1961)

Determine appropriate points of the outermost Islands of the archipelago, then connect them by meansof a straight line until all islands are surrounded or enclosed by the imaginary straight lines.

"The baselines from which the territorial sea of the Philippines is determined consist of straightlines joining appropriate points of the outermost islands of the archipelago." (fifth whereas clause.)

2. RA 5446 (8 September 1968).-- Sec. 2 of the Act provides that the definition of theterritorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the delineation of thebaselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republicof the Philippines has acquired dominion and sovereignty.

Uses of the baseline:

a. Determine what is internal water (all waters inside the baseline, whether or not more than 12 milesfrom the shore).

b. Determine the 200 mile EEZ.

c. Archipelagic Doctrine

The basic concept of an archipelago is that body of water studded with islands, or the islands surroundedwith water, is viewed as a unity of islands and waters together forming one unit. This is in contrast to acontinent which is a single mass of land.

The main purpose of the archipelagic doctrine is to protect the territorial interests of an archipelago. If we follow the old rule of international law, it is possible that between islands, e.g. Bohol and Siquijor, due to themore than 24 mile distance between the 2 islands, there may be high seas. Thus, foreign vessels may just enteranytime at will, posing danger to the security of the State. According to the doctrine, even these bodies of waterwithin the baseline, regardless of breadth, form part of the archipelago and are thus considered as internalwaters.

The archipelagic doctine has a two-fold purpose: (1) economic reasons; (2) national security.(Barlongay.)

The archipelagic doctrine is the principle that it is an integrated unit; everything within it comprises thearchipelago. (ibid.)


26/321

The Constitutional provisions embodying this doctrine are :

1. "archipelago, with all the island and waters embraced therein"

An archipelago is a body of water, studded with islands.

2. "the waters around, between, and connecting the islands of the archipelago, regardless of the breadthand dimensions, form part of internal water"

The following provisions are really superfluous:

1. "terrestrial, fluvial and aerial domains"(because land, water and air space already form part of an archipelago)

2. "territorial sea, seabed, subsoil, insular shelves, other submarine areas"

"Territorial sea" means water outside the baseline extending up to 12 miles.

"Internal water" refers to water within the baseline.

"Insular shelf" means the land which is submerged under water which may extend beyond 12 miles aslong as it is not more than 300 ft. deep. It is also known as intercontinental shelf. (Barlongay.)

2. Other territories over which the Philippines has sovereignty or jurisdiction

PD 1596 (11 June 1978)

Claims the Kalayaan Group of Islands as part of Philippine territory on the basis of historic rights andlegal title.

The claim was made "by reason of history, indispensable need, and effective occupation and controlestablished in accordance with international law. xxx"

3. The territorial sea, the sea bed, the subsoil, the insular shelves and other submarine areas

4. Exclusive Economic Zone

PD 1599 (11 June 1978). There is established an exclusive economic zone extending "to a distance of two hundred nautical miles beyond and from the baselines from which the territorial sea is measured. Provided,


27/321

That , where the outer limits of the zone as thus determined overlap the exclusive economic zone of an adjacentor neighboring state, the common boundaries shall be determined by agreement with the state concerned or inaccordance with pertinent generally recognized principles or international law on delimitation." (Sec. 1 thereof.)

Other states shall enjoy in the exclusive economic zone freedoms with respect to navigations andoverflight, the laying of submarine cables and pipelines, and other internationally lawful uses of the sea relatingto navigation and communications. (Sec. 4 thereof.)

Purposes:

1. Sovereign rights to explore, exploit, conserve and manage the natural resources, living or non-living,renewable or non-renewable of the seabed, subsoil, and superadjacent waters.

Economic exploitation and exploration of the resources of the zone such as the production of energyfrom the water, currents and winds.

2. Exclusive rights and jurisdiction with repect to the establishment and utilization of artificial islands,off-shore terminals, installations and structures; the preservation of the marine environment, including theprevention and control of pollution and scientific research.

3. Such other rights as are recognized by international law.

Other states are prohibited from using the zone to:

1. Explore or exploit any resources;

2. Carry out any search, excavation or drilling operations;

3. Conduct any research;

4. Construct or operate any artificial island, off-shore terminal, installation, or other structure;

5. Perform any activity which is contrary to, or in derogation of, the sovereign rights and jurisdictionherein provided.

Other states are allowed to use the zone for:

1. Navigation and overflight;

2. Laying of submarine cable and pipelines;

3. Other lawful uses related to navigation and communication.


28/321

In case of overlapping of EEZs, the common boundaries are to be detemined by (i) agreement and (ii)international rules on delimitations.

UN Convention on the Law of the Sea (30 April 1982.)

The exclusive economic zone which shall not extend beyond 200 nautical miles from baselines fromwhich the breadth of the territorial sea is measured, is recognized in the UNCLOS, of which the Philippines is asignatory. Its concept is that although it is not part of the territory, exclusive economic benefit is reserved forthe country.

B. People

1. Three meanings of the word "People"

The word "people" is used in at least three senses in the Constitution:

a. "People" as Inhabitants

Art. XIII, Section 1. The Congress shall give highest priority to the enactment of measures that

protect and enhance the right of all the people to human dignity, reduce social, economic, and political

inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the

common good.

Art. II, Section 15. The State shall protect and promote the right to health of the people and instillhealth consciousness among them.

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.

Art. III, Section 2. The right of the people to be secure in their persons, houses, papers, and effects

against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable,

xxx

Qua Chee Gan v Deportation Board, 9 SCRA 27 (1963), infra . The right of the an individual to besecure in his person is guaranteed by the Constitution. Under our Constitution, the same is declared a popularright of the people and, of course, indisputably applies to both citizens and foreigners in this country.

b. People as Citizens


29/321

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 develop our patrimony, and secure to ourselves and our

posterity the blessings of independence and democracy under the rule of law and a regime of truth,

justice, freedom, love, equality and peace, do ordain and promulgate this Constitution.

Art. II, Sec. 1. The Philippines is a democratic and republican State. Sovereignty resides in the

people and all government authority emanates from them.

Art. II, Sec. 4. The prime duty of the Government is to serve and protect the people . The

Government may call upon the people to defend the State and, in the fulfillment thereof, all "citizens" may

be required to render personal military or civil service.

Art. III, Sec. 7. The right of the people to information on matters of public concern shall be recog-

nized. Access to official records, and to documents, and papers pertinent to official acts, transactions, or

decisions, as well as to government research data used as basis for policy development, shall be afforded

the citizens subject to limitations provided by law.

c. People as Electors

Art. VII, Sec. 4. The President and Vice-President shall be elected by direct vote of the people

xxx.

Art. XVI, Sec. 2. The Congress may, by law, adopt a new name for the country, a national anthem,or a national seal, which shall all be truly reflective and symbolic of the ideals, history, and traditions of

the people. Such law shall take effect only upon its ratification by the people in a national referendum.

Art. XVIII, Sec. 25. After the expiration in 1991 of the Agreement between Republic of the

Philippines and United States of America concerning Military Bases, foreign military bases, troops, or

facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and,

when Congress requires, ratified by a majority of the votes cast by the people in a national referendum

held for that purpose, and recognized as a treaty by the other contracting party.

2. Citizenship

a. Who are citizens

Art. IV, Sec. 1. The following are citizens of the Philippines:1) Those who are citizen of the Philippines at the time of the adoption of the Constitution;

2) Those whose fathers or mothers are citizens of the Philippines;

3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon


30/321

reaching the age of majority; and

4) Those who are naturalized in accordance with law.

These citizens are classifiable into (i) natural-born citizens (covering #'s 1, 2, and 3) and (ii) naturalizedcitizens (covering #4).

b. Election of Philippine citizenship

Com. Act No. 625 (June 7, 1941.) AN ACT PROVIDING THE MANNER IN WHICH THE OPTION TO ELECTPHILIPPINE CITIZENSHIP SHALL BE DECLARED BY A PERSON WHOSE MOTHER IS A FILIPINO CITIZEN

Section 1. The option to elect Philippine citizenship in accordance with subsection (4), section 1, Article IV

[1935 Constitution: Those whose mothers are citizens of the Philippines and, upon reaching the age of majority,

elect Philippine citizenship] shall be expressed in a statement to be signed and sworn to by the party concernedbefore any officer authorized to administer oaths, and shall be filed with the nearest civil registry. The said party

shall accompany the aforesaid statement with the oath of allegiance to the Constitution and the Government of the

Philippines.

Section 2. If the party concerned is absent from the Philippines, he may make the statement herein

authorized before any officer of the Government of the United States (now officials of Philippine Embassy or

Consulate) authorized to administer oaths, and he shall forward such statement together with his oath of allegiance,

to the Civil Registry of Manila.

Note : The right of election permitted under the 1987 Constitution is available only to those born to Filipinomothers under the 1935 Constitution who, had that charter not been changed, would have been able to electPhilippine citizenship upon attaining majority age. That right is retained for them under Article IV, Section 1(3). Obviously, election is not necessary in the case of the child to a Filipino mother under the presentconstitution as she would be considered a Filipino citizen at birth.

Co v. Electoral Tribunal of the House of Representatives, 199 SCRA 692 (1991) F: Petitioners Balingit and Co and private respondent Ong were among the candidates who vied for the position of representative in the 2nd legislative district of Northern Samar in the May 1987 election. Ong was proclaimed the winner.

Petitioners filed election protest with the House of Representatives Electoral Tribunal against Ong on the groundthat Ong is not a natural born citizen of the Philippines and not a resident of the 2nd district of Samar. HRET ruled in favorof Ong.


31/321

ISSUE: W/N Ong is a natural born citizen as to entitle him to run as congressman.

RULING: YES, Ong is a natural born citizen.

Under the 1987 Constitution:

"Sec. 1. The ff. are citizens of the Phil.:xxx

3) Those born before 17 January 1973, of Filipino mothers, who elect Philippine citizenship uponreaching the age of majority; and

4) Those who are naturalized in accordance with law.

Sec. 2. Natural born citizens are those who are citizens of the Phil. from birth without having toperform any act to acquire or perfect their citizenship. Those who elect Phil. citizenship in accordance with par.3, Sec. 1 hereof shall be deemed natural born citizens."

The Court interprets Sec. 1 par. 3 as applying not only to those who elect Phil. citizenship after 2February 1987 but also those who, having been born of Filipino mothers, elected citizenship before that date, asin the case of Ong. This ruling finds support in the deliberations of the Constitutional Commission. Theprovision was framed to correct the anomalous situation where one born of a Filipino father and an alien motherwas automatically granted the status of a natural born citizen while one born of a Filipino mother and an alienfather would still have to elect Phil. citizenship. If one so elected, under earlier laws, he was not conferred thestatus of a natural born citizen.

There is no question that Ong's mother was a natural born Filipina at the time of her marriage with JoseOng Chuan, a Chinese who filed an application for naturalization and was granted one. Crucial to this case iswhether or not Ong elected or chose to be a Filipino citizen in order to come within the purview of the abovequoted constitutional provision.

To expect Ong to have formally or in writing elected citizenship when he came of age is to ask for theunnatural and unnecessary for the court is of the opinion that Ong was already a citizen. Not only was hismother a natural born citizen but his father had been naturalized when the respondent was only nine years old.He could not have divined when he came of age that in 1973 and 1987, the Constitution would be amended torequire him to have filed a sworn statement in 1969 electing citizenship inspite of his already having been acitizen since 1957. An election of Philippine citizenship presupposes that the person electing is an alien or hisstatus is doubtful because he is a national of two countries. There is no doubt in this case about Ong's Filipinonationality when he turned 21.

There are cases which define "election" as both a formal and an informal process. In the case of In ReMallare, the Court held that the exercise of the right of suffrage and the participation in election exercisesconstitute a positive act of election of Phil. citizenship. In this case, Ong did not merely exercise his right of suffrage. He has established his life here in the Phil.

Ong was born in the rural town of Samar where there are no alien enclaves and no racial distinctions.


32/321

The resp. has lived the life of a Filipino since birth. His father applied for naturalization when the child was stilla small boy. Ong has worked in a sensitive position in a government agency. His profession (CPA) requirescitizenship for taking the examinations and getting a license. He has participated in political exercises as aFilipino and has always considered himself a Filipino. There is nothing to indicate any tinge of alien-ness. Themass of voters of N. Samar are fully aware of Ong's parentage. They voted by overwhelming numbers to havehim represent them in Congress. Because of his acts since childhood, they have considered him a Filipino.

The HRET had an interesting view as to how Ong elected citizenship. It observed that "when Ong wasonly nine years old, his father became a naturalized Filipino. Sec. 15 of the Revised Naturalization Act squarelyapplies its benefit to him for he was then a minor residing in the country. Concededly, it was the law itself that had already elected Phil. citizenship for Ong by declaring him as such.

The petitioners contend that Ong's father was not validly naturalized because of his premature taking of the oath of citizenship. The petitioners question the citizenship of Ong's father through a collateral approach.This cannot be done. In our jurisdiction, an attack on a person's citizenship may only be done through a directaction for its nullity. MRM.

xxx The filing of a sworn statement or formal declaration is a requirement for those who still have toelect citizenship. FOR THOSE ALREADY FILIPINOS when the time to elect came up, there are acts of deliberate choice which cannot be less binding. Any election of Philippine citizenship on the part of private re-spondent Ong would not only have been superfluous but would also have resulted in absurdity considering that itwas the law itself that had already elected Philippine citizenship for him.

Dissenting:

Ong is not a natural-born Filipino citizen, he having been born a Chinese citizen by virtue of theChinese citizenship of his father at the time of his birth. Under the 1935 Constitution which was in force at thetime of Ong's birth, only those whose fathers were citizens of the Philippines were considered Filipino citizens.Those whose mothers were citizens of the Philippines had to elect Philippine citizenship upon reaching the ageof majority, in order to be considered Filipino citizens.

c. Natural-born citizens

Art. IV, Section 2. Natural-born citizens are those who are citizens of the Philippines from birth

without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect

Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born

citizens.

The provision granting natural-born status even to those who were born of Filipino mothers before 17January 1973 but elected Philippine citizenship after that date is meant to correct the anomalous situation whereone born under similar circumstances but made the election before 17 January 1973 is granted the status of natural-born citizen by the 1973 Constitution. Simply because there was no definition of a natural-born citizenunder the 1935 Constitution, that one who made the election after the effectivity of the 1973 Constitution was


33/321

not conferred such status. The definition of a natural-born citizen under the 1973 Constitution, therefore made achild of Filipino mother and alien father's right depends on the fleeting accident of time, and resulted in twokinds of citizens made up of essentially the same members.

At the same time, however, those who elected prior to 17 January 1973 could not be placed in the samefooting as those who made the election after that date, because the former already had a "vested right" to theircitizenship which could not be diminished by the 1973 Constitution.

The remedy is to place the latter in the same footing as the former. Thus, under the 1987 Constitution,this accidental anomaly no longer exists.

To illustrate: If X was born and elected before 17 January 1973, his status under the 1973 and 1987Constitutions is that of a natural-born citizen, because although he had to perform an act to perfect his citi-zenship, he could not otherwise be classified since there was no definition of natural-born citizens in the 1935Constitution.

If X was born before and elected after 17 January 1973, whether before or after 2 February 1987, he wasnot a natural-born citizen under the 1973 Constitution. If not for the proviso in the 1987 Constitution, he wouldnot have been deemed natural-born citizen either.

In turn the definition of "natura

Constitutional Law 1 Reviewer - Ram Notes

Documents

Transcript of Constitutional Law 1 Reviewer - Ram Notes