Article I - Territory

Province of North Cotabato vs Govt of the Phils Peace Panel

The relationship between the Central Government and the Bangsamoro juridical entity shall be associative characterized by shared authority and responsibility

An association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence.

In international practice, the "associated state" arrangement has usually been used as a transitional device of former colonies on their way to full independence. Examples of states that have passed through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states.

Back to the MOA-AD, it contains many provisions which are consistent with the international legal concept of association, specifically the following: the BJE's capacity to enter into economic and trade relations with foreign countries, the commitment of the Central Government to ensure the BJE's participation in meetings and events in the ASEAN and

the specialized UN agencies, and the continuing responsibility of the Central Government over external defense. Moreover, the BJE's right to participate in Philippine official missions bearing on negotiation of border agreements, environmental protection, and sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming part of the ancestral domain, resembles the right of the governments of FSM and the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter affecting them.

These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state or, at any rate, a status closely approximating it.

The concept of association is not recognized under the present Constitution.

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an "associative" relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this

jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence.

The BJE is a far more powerful entity than the autonomous region recognized in the Constitution.

It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from that of the ARMM. 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, a defined territory, a government, and a capacity to enter into relations with other states.

Prof Merlin Magallona vs Ermita

RA 9522 is a Statutory Tool to Demarcate the Country’s Maritime Zones and Continental Shelf Under UNCLOS III, not to Delineate Philippine Territory

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical miles from the baselines]), and

continental shelves that UNCLOS III delimits. UNCLOS III was the culmination of decades-long negotiations among UN members to codify norms regulating the conduct of States in the world’s oceans and submarine areas, recognizing coastal and archipelagic States’ graduated authority over a limited span of waters and submarine lands along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf.

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which States parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in the exclusive economic zone

(Article 56) and continental shelf (Article 77).

UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or diminution of territory. Under traditional international law typology, States acquire territory through occupation, accretion, cession and prescription, not by executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treaty’s terms to delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS III, and are instead governed by the rules on general international law.

RA 9522’s Use of the Framework of Regime of Islands to Determine the Maritime Zones of the KIG and the Scarborough Shoal, not Inconsistent with the Philippines’ Claim of Sovereignty Over these Areas

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS III’s limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable cartographic fact takes the wind

out of petitioners’ argument branding RA 9522 as a statutory renunciation of the Philippines’ claim over the KIG, assuming that baselines are relevant for this purpose.

Petitioners’ assertion of loss of “about 15,000 square nautical miles of territorial waters” under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of basepoints, increased the Philippines’ total maritime space (covering its internal waters, territorial sea and exclusive economic zone) by 145,216 square nautical miles.

Further, petitioners’ argument that the KIG now lies outside Philippine territory because the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the Philippines’ continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:

SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as “Regime of Islands” under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS):

a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and

b) Bajo de Masinloc, also known as Scarborough Shoal.

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that “[t]he drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago.” Second, Article 47 (2) of UNCLOS III requires that “the length of the baselines shall not exceed 100 nautical miles,” save for three per cent (3%) of the total number of baselines which can reach up to 125 nautical miles.

Although the Philippines has consistently claimed sovereignty over the KIG and the Scarborough Shoal for several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the Philippine archipelago, such that any straight baseline loped around them from the nearest basepoint will inevitably “depart to an appreciable extent from the general configuration of the archipelago.”

Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS III’s limits. The need to shorten this baseline, and in addition, to

optimize the location of basepoints using current maps.

Hence, far from surrendering the Philippines’ claim over the KIG and the Scarborough Shoal, Congress’ decision to classify the KIG and the Scarborough Shoal as “‘Regime[s] of Islands’ under the Republic of the Philippines consistent with Article 121” of UNCLOS III manifests the Philippine State’s responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any “naturally formed area of land, surrounded by water, which is above water at high tide,” such as portions of the KIG, qualifies under the category of “regime of islands,” whose islands generate their own applicable maritime zones.

Statutory Claim Over Sabah under RA 5446 Retained

Petitioners’ argument for the invalidity of RA 9522 for its failure to textualize the Philippines’ claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines of Sabah:

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated

in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty.

UNCLOS III and RA 9522 not Incompatible with the Constitution’s Delineation of Internal Waters

Whether referred to as Philippine “internal waters” under Article I of the Constitution or as “archipelagic waters” under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water lying landward of the baselines, including the air space over it and the submarine areas underneath. UNCLOS III affirms this.

The fact of sovereignty, however, does not preclude the operation of municipal and international law norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of maintaining unimpeded, expeditious international navigation, consistent with the international law principle of freedom of navigation. Thus, domestically, the political branches of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage. Indeed, bills drawing nautical highways for sea-lanes passage are now pending in Congress.

In the absence of municipal legislation, international law norms, now

codified in UNCLOS III, operate to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treaty’s limitations and conditions for their exercise. Significantly, the right of innocent passage is a customary international law, thus automatically incorporated in the corpus of Philippine law. No modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with customary international law without risking retaliatory measures from the international community.

The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and sea lanes passage does not place them in lesser footing vis-à-vis continental coastal States which are subject, in their territorial sea, to the right of innocent passage and the right of transit passage through international straits. The imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the waters landward of their baselines, regardless of their depth or distance from the coast, as archipelagic waters subject to their territorial sovereignty. More importantly, the recognition of archipelagic States’ archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS III. Separate islands generate

their own maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the States’ territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III.

In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone, reserving solely to the Philippines the exploitation of all living and non-living resources within such zone. Such a maritime delineation binds the international community since the delineation is in strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international community will of course reject it and will refuse to be bound by it.

Art IV – Citizenship

Section 1 – Who are Filipino Citizens

Tecson vs COMELEC

Any conclusion on the Filipino citizenship of Lorenzo Pou could only be drawn from the presumption that having died in 1954 at 84 years old, Lorenzo would have been born sometime in the year 1870, when the Philippines was under Spanish rule, and that San Carlos, Pangasinan, his place of residence upon his death in 1954, in the absence of any other evidence, could have well been his place of residence before death, such that Lorenzo Pou would have benefited from the "en masse Filipinization" that the Philippine Bill had effected in 1902. That citizenship (of Lorenzo Pou), if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The 1935 Constitution,

during which regime respondent FPJ has seen first light (born on Aug. 20, 1939), confers citizenship to all persons whose fathers are Filipino citizens regardless of whether such children are legitimate or illegitimate. (Nationality of the mother is not an issue because FPJ was born of Filipino father)

Section 1 – Who are Filipino Citizens

In Re: Admission to the Bar of Vicente Ching

When Ching was born in 1964, the governing charter was the 1935 Constitution. Under Article IV, Section 1(3) of the 1935 Constitution, the citizenship of a legitimate child born of a Filipino mother and an alien father followed the citizenship of the father, unless, upon reaching the age of majority, the child elected Philippine citizenship. This right to elect Philippine citizenship was recognized in the 1973 Constitution when it provided that "(t)hose who elect Philippine citizenship pursuant to the provisions of the Constitution of 1935 are citizens of the Philippines. Likewise, this recognition by the 1973 Constitution was carried over to the 1987 Constitution which states that "(t)hose born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority" are Philippine citizens.

C.A. No. 625 which was enacted pursuant to Section 1(3), Article IV of the 1935 Constitution, prescribes the procedure that should be followed in order to make a valid election of Philippine citizenship. However, the 1935 Constitution and C.A. No. 625 did

not prescribe a time period within which the election of Philippine citizenship should be made. The 1935 Charter only provides that the election should be made "upon reaching the age of majority." Election should be made within a "reasonable time" after attaining the age of majority. The phrase "reasonable time" has been interpreted to mean that the election should be made within three (3) years from reaching the age of majority.

In the present case, Ching, having been born on 11 April 1964, was already thirty-five (35) years old when he complied with the requirements of C.A. No. 625 on 15 June 1999, or over fourteen (14) years after he had reached the age of majority. Based on the interpretation of the phrase "upon reaching the age of majority," Ching's election was clearly beyond, by any reasonable yardstick, the allowable period within which to exercise the privilege. It should be stated, in this connection, that the special circumstances invoked by Ching, i.e., his continuous and uninterrupted stay in the Philippines and his being a certified public accountant, a registered voter and a former elected public official, cannot vest in him Philippine citizenship as the law specifically lays down the requirements for acquisition of Philippine citizenship by election.

The span of fourteen (14) years that lapsed from the time he

reached the age of majority until he finally expressed his intention to elect Philippine citizenship is clearly way beyond the contemplation of the requirement of electing "upon reaching the age of majority."

Philippine citizenship can never be treated like a commodity that can be claimed when needed and suppressed when convenient. One who is privileged to elect Philippine citizenship has only an inchoate right to such citizenship. As such, he should avail of the right with fervor, enthusiasm and promptitude. Sadly, in this case, Ching slept on his opportunity to elect Philippine citizenship and, as a result, this golden privilege slipped away from his grasp.

Section 5 - Dual Allegiance

Mercado vs Manzano

Dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual

citizenship:

(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli;

(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers’ country such children are citizens of that country;

(3) Those who marry aliens if by the laws of the latter’s country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship.

Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual’s volition.

With respect to dual allegiance, Article IV, §5 of the Constitution provides: “Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.”

Clearly, in including §5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of

origin even after their naturalization. Hence, the phrase “dual citizenship” in R.A. No. 7160, §40(d) and in R.A. No. 7854, must be understood as referring to “dual allegiance.” Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states.

Maquiling vs COMELEC

When Arnado used his US passport on 14 April 2009, or just eleven days after he renounced his American citizenship, he recanted his Oath of Renunciation that he “absolutely and perpetually renounce(s) all allegiance and fidelity to the UNITED STATES OF AMERICA” and that he “divests himself of full employment of all civil and political rights and privileges of the United States of America.”

Such act of using a foreign passport does not divest Arnado of his Filipino citizenship, which he acquired by repatriation. However, by representing himself as an American citizen, Arnado voluntarily and effectively reverted to his earlier status as a dual citizen. Such reversion

was not retroactive; it took place the instant Arnado represented himself as an American citizen by using his US passport.

The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time, only to be violated the next day. It requires an absolute and perpetual renunciation of the foreign citizenship and a full divestment of all civil and political rights granted by the foreign country, which granted the citizenship.

Article VI Section 25 (5) – Augmentation Power

Cross-Border Transfer of Funds - Araullo vs Aquino

Cross-borderaugmentations from savings wereprohibited by the Constitution

By providing that the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the Heads of the Constitutional Commissions may be authorized to augment any item in the GAA "for their respective offices," Section 25(5) has delineated borders between their offices, such that funds appropriated for one office are prohibited from crossing over to another office even in the guise of augmentation of a deficient item or items. Thus, we call such transfers of funds cross-border transfers or cross-border augmentations.

To be sure, the phrase "respective offices" used in Section 25(5) refers to the entire Executive, with respect to the President; the Senate, with

respect to the Senate President; the House of Representatives, with respect to the Speaker; the Judiciary, with respect to the Chief Justice; the Constitutional Commissions, with respect to their respective Chairpersons.

The records show, indeed, that funds amounting to P143,700,000.00 and P250,000,000.00 were transferred under the DAP respectively to the COA and the House of Representatives. Those transfers of funds, constituted cross-border augmentations for being from the Executive to the COA and the House of Representatives.

The respondents further stated in their memorandum that the President "made available" to the "Commission on Elections the savings of his department upon [its] request for funds…" This was another instance of a cross-border augmentation.

Thus, no cross-border transfers/augmentations may be allowed. But under the DAP, this was violated because funds appropriated by the GAA for the Executive were being transferred to the Legislative and other non-Executive agencies (i.e., the House of Representatives, COA and COMELEC).

Non-delegability of

The congressional pork barrel system is unconstitutional. It is

Legislative Power – Belgica vs Ochoa

unconstitutional because it violates the following principles:

a. Separation of Powers

As a rule, the budgeting power lies in Congress. It regulates the release of funds (power of the purse). The executive, on the other hand, implements the laws – this includes the GAA to which the PDAF is a part of. Only the executive may implement the law but under the pork barrel system, what’s happening was that, after the GAA, itself a law, was enacted, the legislators themselves dictate as to which projects their PDAF funds should be allocated to – a clear act of implementing the law they enacted – a violation of the principle of separation of powers.

b. Non-delegability of Legislative Power

As a rule, the Constitution vests legislative power in Congress alone. (The Constitution does grant the people legislative power but only insofar as the processes of referendum and initiative are concerned). That being, legislative power cannot be delegated by Congress for it cannot delegate further that which was delegated to it by the Constitution.

In this case, the PDAF articles which allow the individual legislator to identify the projects to which his PDAF money should go to is a violation

of the rule on non-delegability of legislative power. The power to appropriate funds is solely lodged in Congress (in the two houses comprising it) collectively and not lodged in the individual members. Further, nowhere in the exceptions does it state that the Congress can delegate the power to the individual member of Congress.

c. Principle of Checks and Balances

One feature in the principle of checks and balances is the power of the president to veto items in the GAA which he may deem to be inappropriate. But this power is already being undermined because of the fact that once the GAA is approved, the legislator can now identify the project to which he will appropriate his PDAF. Under such system, how can the president veto the appropriation made by the legislator if the appropriation is made after the approval of the GAA – again, “Congress cannot choose a mode of budgeting which effectively renders the constitutionally-given power of the President useless.”

d. Local Autonomy

As a rule, the local governments have the power to manage their local affairs. Through their Local Development Councils (LDCs), the LGUs can develop their own programs and policies concerning their localities. But with the PDAF, particularly on the part of the members of the house of

representatives, what’s happening is that a congressman can either bypass or duplicate a project by the LDC and later on claim it as his own. This is an instance where the national government meddles with the affairs of the local government – and this is contrary to the State policy embodied in the Constitution on local autonomy.

Article VII - Executive

Section 16- Power of Appointment

Sarmiento vs Mison

Under the 1987 Constitution, Heads of Bureau are removed from the list of officers that needed confirmation from the Commission On Appointment. It enumerated the four (4) groups whom the President shall appoint:

Heads of the Executive Departments;

Ambassadors, other public minister or consuls;

Officers of the Armed Forces from the rank of Colonel or Naval Captain; and

Other officers whose appointments are vested in him in this Constitution;

The above-mentioned circumstance is the only instance where the appointment made by the President that requires approval from the COA and the following instances are those which does not require

approval from COA:

1. All other Officers of the Government whose appointments are not otherwise provided by law;

2. Those whom the President may be authorized by law to appoint; and

3. Officers lower in rank whose appointments the Congress may by law vest in the President alone.

Section 18 – Calling-out Power

David vs Arroyo

1st Provision: Calling out power - “by virtue of the power vested upon me by Section 18, Article VII … do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well any act of insurrection or rebellion”

Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But every act that goes beyond the President’s calling-out power is considered illegal or ultra vires.

PP 1017 is not a declaration of Martial Law. It is no more than a call by the President to the armed forces to prevent or suppress lawless

violence. As such, it cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its use for any other purpose is a perversion of its nature and scope, and any act done contrary to its command is ultra vires.

(a) arrests and seizures without judicial warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the President as Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an exercise of President Arroyo’s calling-out power for the armed forces to assist her in preventing or suppressing lawless violence.

IBP vs Zamora When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President's wisdom or substitute its own.

However, this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. In view of the constitutional intent to give the President full discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the President's decision is totally bereft of factual basis. The present petition fails to discharge such heavy burden as there is no evidence to support the assertion that there exist no justification for calling out the armed forces.

There is a clear textual commitment under the Constitution to bestow on the President full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. Section 18, Article VII of the Constitution, which embodies the powers of the President as Commander-in-Chief, provides in part:

The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.

Article VIII - Judiciary

Section 1 – Power of

Political questions are those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard

Judicial Review

Definition of Political Question – Tanada vs Cuenco

to which full discretionary authority has been delegated to the Legislature or executive branch of the Government.

It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.

Section 1 – Power of Judicial Review

1st Type of Political Question (Ex: Recall) – Evardone vs COMELEC

Whether or not the electorate of the Municipality of Sulat has lost confidence in the incumbent mayor is a political question. It belongs to the realm of politics where only the people are the judge.

Section 1 – Power of

The legitimacy of the Aquino government is not a justiciable matter but belongs to the realm of politics where only the people are the judge.

Judicial Review

1st Type of Political Question (Ex: People Power) – Lawyers League for a Better Phils vs Aquino

The Court further held that:

the people have accepted the Aquino government which is in effective control of the entire country;

it is not merely a de facto government but in fact and law a de jure government; and

the community of nations has recognized the legitimacy of the new government.

Section 1 – Power of Judicial Review

1st Type of Political Question (Ex: People Power) – Estrada vs

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino, et al. to support their thesis that since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they present a political question.

A more cerebral reading of the cited cases will show that they are inapplicable. In the cited cases, we held that the government of former President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful one. No less than the Freedom Constitution declared that the Aquino government was installed through

Desierto a direct exercise of the power of the Filipino people "in defiance of the provisions of the 1973 Constitution, as amended." It is familiar learning that the legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution. In her oath, she categorically swore to preserve and defend the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power I and EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President. EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I

presented a political question; EDSA II involves legal questions.

Section 1 – Power of Judicial Review

2nd Type of Political Question (Ex: Calling Out Power) – IBP vs Zamora

When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President's wisdom or substitute its own.

However, this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. In view of the constitutional intent to give the President full discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the President's decision is totally bereft of factual basis.

The President as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to call out the military to

prevent or suppress lawless violence must be done swiftly and decisively if it were to have any effect at all. Such a scenario is not farfetched when we consider the present situation in Mindanao, where the insurgency problem could spill over the other parts of the country. The determination of the necessity for the calling out power if subjected to unfettered judicial scrutiny could be a veritable prescription for disaster, as such power may be unduly straitjacketed by an injunction or a temporary restraining order every time it is exercised.

Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner can show that the exercise of such discretion was gravely abused, the President's exercise of judgment deserves to be accorded respect from this Court.

Section 1 – Power of Judicial Review

It is well-established that the conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative--'the political'--departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.

2nd Type of Political Question (Ex: Foreign Relations) – Vinuya vs Exec Secretary

The question whether the Philippine government should espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the political branches. In this case, the Executive Department has already decided that it is to the best interest of the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question.

Article XVI Section 3 – Doctrine of State Immunity

Arigo vs Swift

The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-suability of the State, is expressly provided in Article XVI of the 1987 Constitution which states:

Section 3. The State may not be sued without its consent.

The rule that a state may not be sued without its consent, now expressed in Article XVI, Section 3, of the 1987 Constitution, is one of the generally accepted principles of international law that we have adopted as part of the law of our land under Article II, Section 2. x x x.

Even without such affirmation, we would still be bound by the generally accepted principles of international law under the doctrine of incorporation. Under this doctrine, such principles are deemed incorporated in the law of every civilized state as a condition and

consequence of its membership in the society of nations. Upon its admission to such society, the state is automatically obligated to comply with these principles in its relations with other states.

As applied to the local state, the doctrine of state immunity is based on the justification given by Justice Holmes that “there can be no legal right against the authority which makes the law on which the right depends. In the case of the foreign state sought to be impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in parem, non habet imperium. All states are sovereign equals and cannot assert jurisdiction over one another. A contrary disposition would “unduly vex the peace of nations.”

While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against the state itself although it has not been formally impleaded. In such a situation, the state may move to dismiss the complaint on the

ground that it has been filed without its consent.

This traditional rule of State immunity which exempts a State from being sued in the courts of another State without the former’s consent or waiver has evolved into a restrictive doctrine which distinguishes sovereign and governmental acts (jure imperii) from private, commercial and proprietary acts (jure gestionis). Under the restrictive rule of State immunity, State immunity extends only to acts jure imperii. The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs.

The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction.

In this case, the US respondents were sued in their official capacity as commanding officers of the US Navy who had control and supervision over the USS Guardian and its crew. The alleged act or omission resulting in the unfortunate grounding of the USS Guardian on the TRNP was committed while they were performing official military duties. Considering that the satisfaction of a judgment against said officials will require remedial actions and appropriation of funds by the US government, the suit is deemed to be one against the US itself. The principle of State immunity therefore bars the exercise of jurisdiction by this Court over the persons of respondents Swift, Rice and Robling.

Article XVII – Amendments and Revisions

Lambino vs COMELEC

The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision through Initiatives

A people’s initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. In contrast, Congress or a constitutional convention can propose both amendments and revisions to the Constitution. Article XVII of the Constitution provides:

ARTICLE XVII

AMENDMENTS OR REVISIONS

Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:

The Congress, upon a vote of three-fourths of all its Members, or

A constitutional convention.

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative x x x. (Emphasis supplied)

Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through Congress upon three-fourths vote of all its Members. The second mode is through a constitutional convention. The third mode is through a people’s initiative.

The question is, does the Lambino Group’s initiative constitute an amendment or revision of the Constitution? If the Lambino Group’s initiative constitutes a revision, then the present petition should be dismissed for being outside the scope of Section 2, Article XVII of the Constitution.

Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change

alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended.

Courts have developed a two-part test: the quantitative test and the qualitative test. The quantitative test asks whether the proposed change is “so extensive in its provisions as to change directly the ‘substantial entirety’ of the constitution by the deletion or alteration of numerous existing provisions.” The court examines only the number of provisions affected and does not consider the degree of the change.

The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will “accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision.”

Under both the quantitative and qualitative tests, the Lambino Group’s initiative is a revision and not merely an amendment. Quantitatively, the Lambino Group’s proposed changes overhaul two articles - Article VI on the Legislature and Article VII on the Executive - affecting a total of

105 provisions in the entire Constitution. Qualitatively, the proposed changes alter substantially the basic plan of government, from presidential to parliamentary, and from a bicameral to a unicameral legislature.

Where the proposed change applies only to a specific provision of the Constitution without affecting any other section or article, the change may generally be considered an amendment and not a revision. For example, a change reducing the voting age from 18 years to 15 years is an amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media companies from 100 percent to 60 percent is an amendment and not a revision. Also, a change requiring a college degree as an additional qualification for election to the Presidency is an amendment and not a revision.

However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one sentence of the Constitution may be a revision and not an amendment. For example, the substitution of the word “republican” with “monarchic” or “theocratic” in Section 1, Article II of the Constitution radically overhauls the entire structure of government and the fundamental ideological basis of the Constitution. Thus, each specific change will have to be examined case-by-case, depending on how it affects other provisions, as

well as how it affects the structure of government, the carefully crafted system of checks-and-balances, and the underlying ideological basis of the existing Constitution.