CONSTI LAW 1 - Notes for Pre Mids and Midterm

CONSTITUITIONAL LAW I POLITICAL LAW Defines the relationship between the state and the inhabitants of territory Branch of public law which deals with the operation and organization of the governmental of the state (const1) Relationship= Rights and Obligations (consti 2) Branches of Political Law: i. Constitutional Law ii. Election Law iii. Law of Public Offices iv. Administrative Law v. Law of Public Corporations PUBLIC LAW Branch of law which deals with the state, state agencies, an protection of state interest Governs Branches of Public Law: i. Political ii. Criminal (state protects its interest) iii. International PRIVATE LAW Branch of law which deals with the relationship between and among individuals Branches of Private Law: i. Civil ii. Commercial Case: Macariola v. Asuncion Discusses Political Law When there is transfer in sovereignty, public law is automatically abrogated while private law is automatically retained Q: Why is this so? A: Because private law is only concerned with the relationship between and among individuals and not with the state. CONSTITUTIONAL LAW Is the study of the constitution and principles growing out of the interpretations of the provisions of the constitution Subject matter: constitution + interpretation of the provision in the constitution (jurisprudence) Constitution- body of rules and maxims in accordance with the powers of sovereignty are habitually exercised Tells the state how to exercise the power It is considered the limitations Guidelines on how to exercise the power “The power of the state is from the state.”

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Inherent power From the moment the state existed, there is power

Characteristics of Constitution 1. It is a limitation Because it is not the source, it only serves as guidelines on how to go about with the law 2. Doctrine of constitutional supremacy Because it is supreme, all other laws should coincide with it. If not, such law is considered null and void. Case: Manila Prince Hotel v. GSIS Q: If you have a constitutional provision (in the case: The Filipino First Policy) not involved in a contract, can you still apply it? A: Yes, because it is deemed written in every statute and contract for it is the fundamental law of the land (it will prescribe the framework). Kinds of Constitution 1. Written/ unwritten Written, provisions are written at one particular time Written, one whose precepts are embodied in one document or set of documents Unwritten, not putting together provisions on a single document at a single time Unwritten, consist of rules which have not been integrated into a singe, concrete form Q: Can a constitution with written provisions be considered as an unwritten constitution? A: Yes. 2. -

Rigid/ flexible Rigid, when the manner of changing the constitution is difficult Flexible, when you can easily change it

Q: Is it flexible if it is constantly changing and rigid if never changed at all? A: No. Q: What makes a process difficult? A: It is difficult if you change it not in the way you change an ordinary legislation. AMENDMENT AND REVISIONS Article XVII of the constitution Intention: Revision – intention and plan must contemplate a CONSIDERATION of all the provisions of the constitution to determine which one should be altered or supported or whether the whole document should be replaced with an entirely new one

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Amendment – intention is to IMPROVE specific partsof the existing constitution or to ADD to its provisions deemed essential or to SUPRESS portions of it that seem obsolete, or dangerous or misleading in their effect Q: How are amendments and revisions done? A: Step I: Proposal by the people Step II: Ratification- congress shall provided for the implementation Q: How do you propose? A: (Amendments and revisions have diff. steps) Ammendments (3) 1. Constituent assembly Same congress not acting as legislative; upon a vote of ¾ 2. Constitutional convention They make a separate body by having a 2/3 votes of all its members 3. People’s initiative: 12% of registered voters of which every legislative district must be represented by at least 3% of the registered voters therein [note: in proposing, one should follow the ONE SUBJECT rule] Revisions 1. Constituent Assembly 2. Constitutional Convention RA 6735 – people’s initiative is for national/local legislation amendments only, not to constitution revisions (only for laws, ordinances or resolutions Q: How do you know if the process being done is amending or revising? A: Through the quantity and quality test Quality, inquires into what will be changed. Whether the fundamental principle with which the government is founded of the constitution is changed Revision, implies a change that alters a basic principle in the constitution; it involves alterations of different portions of the entire document Quantity, how many provisions are to be changed (refers to the number of…) Q: How do you ratify? A: Submitted to the people on a single “election” plebiscite one time Q: Constitutional Assembly is formed by a vote of ¾ of Congress. Considering the fact that the Lower House comprises more than ¾ of the Congress, can you exclude the senate from the ¾ vote? A: For instance that they want the congress to vote jointly, it is to be specified whether both houses vote jointly or separately.

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When article 17 was finished, they thought it was still under unicameral provision

Q: Is people’s initiative available today? A: People’s is not self executory. There should be an enabling law. (Case: Santiago v. Comelec) Q: Was the decision carried over to Lambino’s case? A: No, because the cases are different. In Lambino’s case, the matter at hand was a revision rather than amendment. In Lambino’s Case There were 105 sections changed (quanti) What they wanted to change was the governmental principle of checks and balances (quali) In this case, they weren’t able to show the full contents or laws of the proposed law Q: why should the text be in full and not just an abstract? A: because Art. XVII section 2 of the constitution clearly provides that people’s initiative should be DIRECTLY PROPOSED, so that people will fully comprehend the meaning and effect of the proposed changes to enable them to make a free, intelligent and well-informed choice on the matter Q: Assuming you have an enabling law, how do you go about with People’s Initiative? A: In the petition that you pass, the draft of the petition should be embodied (it should be at the face of the petition) Q: Is there an alternative way of making a petition? How do you do it? A: Yes, you attach your draft. The petition must state the fact/ reason for such attachment. Q: What are the next steps after passing the draft? A: You let the people sign (voters only) You then submit the signatures to COMELEC for them to verify the signatures and to check its sufficiency. They have to check if these people are live voters and if they complied the 12% or 3% requirement. After having the certification from COMELEC, you proceed with the ratification which is done not earlier than 60 days nor later than 90 day after the approval of such amendments (after COMELEC signed it)

Our Constitution is patterned internationally 1. British - no written constitution 2. Continental- written consti but no interpretation of court

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3. American- written consti and interpreted by court (what we follow in the Philippines)

JUDICIAL REVIEW Manner of interpretation The power of the courts to declare that a law or executive act is not in accord with the constitution Constitutional Supremacy

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Judiciary (Courts) Legislative (Congress) Executive (President) They are separate Co-equal

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Judicial review is not judicial supremacy rather it is constitutional supremacy

Article VIII Section I Judicial power includes the duty of the court of justice to settle actual controversies involving rights to which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government

Two Folds of Judicial Power 1. Settlement of Actual Controversies 2. Determination of whether there is grave abuse of discretion

supreme court and lower courts, as expressly provided for in the constitution, is not just a power but also a duty and it was given as expanded decision to include the power to correct any grave abuse of discretion on the part of government branch/instrumentality. Requisites of Judicial Review 1. Actual Case - Actual clash of rights - Not abstract/ hypothetical question/ moot - Case or controversy requirement - Conflict of legal rights Q: Why is there a danger in giving counsel or suggestions on hypothetical cases? A: 1. It gives an inferior image to the court if advise is not followed (subverts the ideas of separation of power) 2. Danger of taxing the people because of entertaining hypothetical cases 3. There is a presumption of constitutionality - It takes more than a hypothesis to override it 2. Proper Party - has personal substantial interaction on the case because he has sustained or is in immediate danger of sustaining an injury - Test: Personal Injury/ Direct Injury - should NOT be generalized interest o Citizen can file- direct injury/ personal injury o Tax payer can file- issue should be on disbursement of public funds o Legislative can file- allowed to sue to question the validity of an official action which he claims infringes his prerogative as a legislator

Judicial review is part and parcel of Judicial Power (power is broader) Judicial Review is limited in knowing if law or executive act is not in accordance with constitution. Q: Is judicial review judiciary supremacy? A: No, judicial review is merely an expression of the supremacy of the constitution. Court only declares the unconstitutionality of law/executive order. Q: Why is it given to judiciary? A: It is their inherent power by virtue of the doctrine of separation of powers. Case: Marbury vs. Madison Q: Is the theory of judicial review in US the same here in the Philippines? A: No. While the power of judicial review is only impliedly granted to the US supreme court and is discretionary in nature, Philippine

Case: Angara vs. COMELEC Q: what is judicial review? A: when judiciary mediates to allocate constitutional boundaries, it ONLY ASSERTS THE SOLEMN AND SACRED OBLIGATION ASSIGNED TO IT BY THE CONSTITUTION to determine conflicting claims of authority. In case of CONFLICT, the judicial department is the only constitutional organ which can be called upon to DETERMINE THE PROPER ALLOCATION OF POWERS between the several departments and among the integral or constituent units thereof Case: Francisco v. House of Representatives Q: Why was the case pursued even if there was no locus standing? (Davide did not pass complain) A: There is an exemption: Transcendental Importance/ Paramount Public Interest Q: when is there a case of transcendental importance? A: There are instructive determinants (comply with one or all) 1. Characteristics of funds or other assets is involved in the case

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2. Clear disregard of a constitutional/ statutory prohibition by the public respondent agency or instrumentality of the government 3. The lack of any other party with a more direct and specific interest in raising the question being raised However, courts hold the decision of whether they will allow transcendental importance: such liberality is not to be abused. It is not an open invitation for the ignorant and the ignoble to file petitions that prove nothing but their cerebral deficit. (Case: Lozano v. Nograles) Transcendental Importance is Subjective to the courts 3. CQ raised at the Earliest Opportunity Q: Why is there a need to raise CQ on the earliest opportunity? A: So that it will not be unfair to the defendant.

Plaintiff/ petitioner

Defendant/ respondent

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Initiates the whole process through complaint or petition

Receives the allegation and give answer/ comment

CQ cannot just be an afterthought much more is a moot and academic issue except if it is a case capable of repetition yet evading review. 4. Necessity of Deciding Constitutional Question - If you want the court to decide on constitutional grounds, there should be no other issues which the court can decide on - If there are two issues, court will not cling on the issue of constitutionality Purposeful Hesitation To veer away on the issue of constitutionality for the issue of respecting the wisdom of legislative and executive body To doubt is to sustain! Lis mota- an unavoidable question Functions of Judicial Review 1. Checking (Case: Osmena vs. COMELEC; Ocenar vs. COMELEC) - This invalidates a law or executive acts that is found to be contrary to the constitution

- This educates the bench and bar as to the controlling principles and concepts or matters on grave public importance for the guidance of and restraint upon the future - Court will not disregard and in effect condone wrong on the simplistic and tolerant pretest that the case has become moot and academic) Case: Juason vs. C.A. and Ynot vs. IAC Q: What courts can exercise judicial review? A: Article VIII Section (in connection to Section 5) All courts have the power for judicial review Courts: -

Deals with the issue of legality or constitutionality What we present to the courts are legal questions Courts cannot decide on “questions of wisdom”

“Beneficial and Wise”- questions referring to these matters are policy statements On this, decision is made by the people, that is why this decision is given to people elected in office (branches) Case: Estrada vs. Arroyo Tenure vs. Term Tenure- term of service Term- provided for in the constitution Fact: Estrada was thought to have resigned on the basis of the diary of Angara. Q: What is the definition of Political Question? A: Baker v. Carr (refer to case) opposing Tañada v. Cuenco: Political Questions refer to those questions which, under the constitution are to be decided by the people in their sovereign capacity or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. Q: How do you determine a TRULY POLITICAL question from a nonjusticeable political question? A: You ask whether there are CONSTITUTIONALLY imposed limitations on powers or functions conferred upon political bodies. If there are, then our courts are DUTY-BOUND to examine whether the branch or instrumentality of the government acted within such limits Q: Is Estrada vs. Arroyo a political case? A: No, because with regards to the issue of resignation, you call for the provisions in the constitution. The question asked on the case at hand was the legality of the resignation.

2. Legitimizing (Case: Osmena vs. COMELEC; Ocenar vs. COMELEC) - This upholds the validity of the law that results from a mere dismissal of a case challenging the validity of the law

Q: What is an example of a political question? A: Pardon given to the convicted as it is a discretion of the president.

3. Symbolic (Case: Salonga vs. Pano; Javier vs. COMELEC)

Q: Why do courts do not decide on political questions?

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A: Aside from the fact that if doing so would subvert the idea of separation of power, courts do not decide on political questions for they are not elected by the people. The executive and the legislative are the ones voted by the people so you give them the right to tackle issues of wisdom. Because theoretically, they reflect what people think is wise. Article VIII: Judicial Department Courts cannot say: they do not want to decide your case because their power to decide is their duty. You can only go to court if “what you have” is anchored on law/constitution (legally demandable and enforceable) Concepts of Judicial Power 1. Traditional- settlement of controversies 2. Expanded/ Certiorari Jurisdiction - determine whether or not there has been a grave abuse of discretion amounting to lack or excess jurisdiction on the part of any branch or instrumentality of the government.

A: There is an implicit caution of judicial supremacy. No one can criticize the judiciary. The difference of the judiciary and the leg/exec body is that the voters have the prerogative to elect/reelect a candidate for leg/exec body. However, it is hard to change the people that compose the judiciary. They can only be changed through the tedious procedure of impeachment. This is why we should be vigilant for the grave abuse of judiciary. Q: What is the effect of declaring a law unconstitutional? A: Use article 7 of the civil code: void as if never written in statute books. However, there is a consideration on the DOCTRINE OF OPERATIVE FACT STATE Case: The Province of North Cotabato v. GRP BJE cannot stand because you are forming a state and there cannot be a state within a state.

Discretion, traditionally is a political question and is off limits to courts -1987 Constitution changed it: G.A.D. - justiceable issue: when the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the limitations respected

STATE VS. NATION State is a legal concept while nation is only a racial or ethnic concept

Q: Why did the 1987 Constitution made “grave abuse of discretion” a justiceable question? A: Because during the martial law era, there was so much grave abuse of discretion where solicitor general’s defense to such cases is “it is a political question” and got away with it.

Q: What makes up a state? A: Group of people Having definite territory Possessed by a government Have a capacity to govern itself (sovereignty)

Q: How do you measure grave abuse? A: If discretion has been exercised whimsically, arbitrarily, maliciously, capriciously… Bottom line is it is subject to the discretion of the court receiving it. Issue on Economic Policy (Prosperity) Judiciary will hesitate and exercise judicial restraint Issue on Liberty Judicial activism

STATE VS. GOVERNMENT State is the principal, the government is its agent Government externalizes the state and articulates its will

Q: What if you have all the elements to become a state but you are not recognized by the international community, can you be called a state? A: Yes, because we follow the constitutive theory. Two theories of state: 1. Constitutive- for as long as you have the elements 2. Declarative- you still have to be recognized by the international community

Philippines- first in the world to define judicial power Q: What is/are the advantage of conducting a judicial review? A: Comfort from abuse. You can settle issues in court and not in the streets. Q: What is/are the disadvantage of our judiciary looking out for discretion issues?

TERRITORY: Must be definite; fixed portion of the surface of the earth inhabited by people of the state Article I of the constitution Our territory is defined as the Philippine archipelago + all other territories over which Philippines has sovereignty/ jurisdiction.

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Additional info: UN Convention on the Law of the Sea (Article 46) Archipelago: group of islands, interconnecting water and other natural features which are so closely interrelated that such islands, waters and other natural features from an intrinsic geographical, economic and political entity or which historically have been regarded as such Question asked during bar exam Q: Is the Philippines still claiming kalayaan and “spratley” islands? A: Yes, because Article I of the constitution states that “and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial… Archipelagic Doctrine of Territoriality Draw straight baseline (outermost point) Look at entire archipelago as a whole so that waters around and between connecting the islands will not be considered as high seas Q: Is there a constitutional provision that supports the Archipelagic doctrine of territoriality? A: Yes, the last sentence of Article I states that “The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimension, form part of the internal waters of the Philippines. However… No one state can dictate another state. So whenever there are disputes, it is settled by international law, customs or standards Q: Why do you have Article I when dispute is not settled by it? A: 1. It serves as a basis or evidence of your claim 2. So that people bound by the territory will know their boundaries and be cautious of their limitation 3. Departing from the method employed in the 1935 constitution, which described the national territory by reference to the pertinent treaties conducted by the United States during its regime in this country, the present rule now physically lists the components of our territory and so de-emphasizes recollection of our colonial past. The article has deleted reference to the territories we claim “by historic right or legal title” PEOPLE Inhabitants of the state Numerous enough to be self-sufficing and to defend themselves and small enough to be easily administered and sustained

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Inhabitants – citizens or foreigners alike Citizens Electors or voters

3 Modes of Acquiring Citizenship: 1. Jus soli – acquisition of citizenship on the basis of place of birth 2. Jus Sanguinis – acquisition of citizenship on the basis of blood relationship 3. Naturalization – the legal act of adopting an alien and clothing him with the privilege of a native born citizen Basic Philippine law follows the rule of jus sanguinis and provides for naturalization Case: Tecson vs. COMELEC Q: Was there Filipino Citizens during the Spanish regime? A: No. People were called then as SPANSIH SUBJECTS Q: Was there a point in time in Philippine History when Jus Soli was practiced? A: Yes. From April 11, 1899 to July 1, 1902 as provided in the Philippine Bill of 1902, citizenship was governed by Jus Soli as it is what and still is the one followed in the United States. Q: When did “Philippine Citizenship” took effect? A: The term “citizens of the Philippine islands” appeared for the first time in the Philippine Bill of 1902, also commonly referred to as the Philippine Organic Act of 1902, the first comprehensive legislation of the Congress of the Unites States on the Philippines Case: Re: Application for Admission to the Philippine Bar Vicente D. Ching Q: If you were born before of a Filipina mother and an alien father before the effectivity of the 1973 Constitution, do the 1973 and 1987 Constitutions recognize such child as a Filipino? A: No, unless upon reaching majority the child elects Philippine citizenship pursuant to the 1935 constitution Q: When must election be made? A: It should be made within a reasonable period after reaching majority, specifically 3 years after turning 21. This period may be extended under certain circumstances, as when the person concerned has always considered himself a Filipino In the case of Ching, the lapse of 14 years form the age of majority is clearly way beyond the contemplation of the requirement of electing “upon reaching the age of majority.” Moreover, Ching has offered no reason why he delayed his election of Philippine citizenship.

3 concepts by which the term PEOPLE is understood in the constitution:

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Q: How is election made? A: Election must be expressed in a statement sworn before any officer authorized to administer oaths and filed with the nearest civil registry and accompanied by an oath of allegiance to the Philippine Constitution Q: What are the steps that should be taken by an alien woman married to a Filipino citizen in order to acquire Philippine citizenship? A: Alien woman must file a petition for the cancellation of her alien certificate of registration, alleging, among other things, that she is married to a Filipino citizen and that she is not disqualified form acquiring her husband’s citizenship Case: Bengson III vs. HRET Q: What are the ways of acquiring citizenship? A: By birth (natural-born citizens) and by naturalization (naturalized citizens) Natural Born Citizens Are those citizens of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship (Article IV Section 2 of 1987 Consti) Q: If you were born before Jan. 17, 1973 of a Filipino mother and alien father, and you elected Filipino citizenship, are you a natural born Filipino? A: Yes, Article IV Section 2 further provides that those who elect Philippine citizenship in acordane with paragraph (3), section 1 hereof shall be deemed natural-born citizens. (Take note: even if you elected, thus you performed an act to acquire citizenship, you are still a natural-born as provided in the 1987 constitution) Q: Why is it important to know if you are Natural-born or not? A: Because natural-born citizens are the only ones allowed to run for constitutional offices. Moreover, there are some rights for naturalborn citizens that are not given to naturalized citizens (Article XII, Section 7 and 8) Case: Mo Ya vs. Commissioner Q: Does a female alien becomes a Filipino citizen upon her marriage to a Filipino citizen? A: Under Section 15 of Commonewealth Act 473, an alien woman marrying a Filipino, native born or naturalized, becomes ipso facto a Filipina provided she is not disqualified to be a citizen of the Philippines under Section 4 of the same law. Likewise, an alien woman married to an alien who is subsequently naturalized here follows the Philippine citizenship of her husband the moment he takes his oath as Filipino citizen, provided that she does not suffer from any of the disqualifications under said section 4 (Take note: in this case, cancelling of the Alien Certificate Registration is needed. Moreover, it is not necessary to have all the qualification but you should not have any of the disqualifications stated in section 4)

RA 9139 provides different qualifications compared to CA 473 to become naturalized citizen Naturalization – may be obtained through a general law of naturalization applied though a judicial process Q: Where do you file naturalization for administrative proceedings? A: Not in court but in Special Committee on Naturalization by Solicitor General

Case: Limkaichong vs. COMELEC Q: Who can raise question for disqualification on the basis of citizenship? A: Not anyone can question the citizenship of a person. It is the State through the Solicitor General who can question. Case: Valles vs. COMELEC Q: Is having an alien passport and applying for an alien certificate tantamount to renunciation of citizenship? A: No, because for renunciation to effectively result in the loss of citizenship, the same must be express. In the case at bar in connection with the case of Aznar vs. COMELEC and Mercado vs. Manzano, an application for an alien certificate of registration does not amount to an express renunciation or repudiation of one’s citizenship. The application of for an alien certificate of registration and the holding of Australian passport were mere acts of assertion of the foreign citizenship before effectively renouncing it. Q: Does marriage of a Filipina to an alien means you lose your citizenship? A: No. Artcile IV section 4 of the 1987 Constitution provides that citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it.

3 ways of Reacquiring Philippine Citizenship 1. Naturalization / Judicial: RA 9139 - Must possess all the qualifications and none of the disqualifications - Becomes executor after 2 years form its promulgation - That during intervening period, the applicant has: i. Not left the Philippines ii. Has dedicated himself to a lawful calling or profession iii. Has not been convicted iv. Has not committed acts prejudicial to the interest of the nation 2.

Repatriation / Administrative

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The act of repatriation allows a person to recover or return to his original status before he lost his Philippine citizenship

Q: Can one choose his or her own way on how to reacquire citizenship? A: No. There are conditions which should be taken into consideration -

Case: Bengson III vs. HRET Repatriation may be had by those who lost their citizenship due to: a. Desertion of the armed forces b. Services in the armed forces in the WWII c. Service in the Armed Forces of the US at any other time d. Marriage to a Filipino woman to an alien e. Political economic necessity (this was what was applicable to the case) Q: What are the Steps one should go through in Repatriation? st A: 1 - File the petition for repatriation in the Special Committee of Naturalization … upon approval nd 2 - Take the oath of allegiance in the Local Civil Registry where you last resided … after registering with the LCR rd 3 – File it in the Bureau of Immigration and Deportation (BID) to acquire certificate of repatriation (what completes the process) Case: Altarejos vs. COMELEC, basis: Frivaldo vs. COMELEC Q: When does the effect of retroactivity of repatriation takes effect? A: It retroacts on the date of filing of application for candidacy In the case of Altarejos, even if his repatriation was not completed before the filing of candidacy, its effects retroacted on the day of filing, making him qualified for the position he was running for. Case: Frivaldo vs. COMELEC Q: When is the qualification of citizenship be construed? A: Since the law does not specify the particular date or time when the candidate must possess citizenship, the court ruled that citizenship qualification must be construed as “applying to the time of proclamation of the elected official and at the start of his term.

being a registered voter you are expected to be a Filipino citizen. Court’s argument in the Frivaldo case states that being a registered voter is just to make sure that you are registered in the place where you are going to run for office. It does not necessarily follow that you exercise your right to vote. DUAL CITIZENSHIP VS. DUAL ALLEGIANCE Case: Mercado vs. Manzano Dual Citizenship – involuntary because it is due to the concurrent application of different laws of two or more states. (example: Philippines – jus sanguinis, US – jus soli… Therefore, if you are born of Filipino parents in the United States you have dual citizenship) Dual Allegiance – it is a result of an individual’s volition; you profess your allegiance by knowing and intending to do so Q: Why is dual allegiance considered inimical to the national interest and shall be dealt with by law? A: based on what happened in Taiwan, dual allegiance can mean a tragic capital outflow when the other country would have to endure a capital famine which also means economic stagnation, worsening unemployment and social trust. Case: Calilung vs. Dutamanong Q: How do you retain citizenship through RA 9225? A: You take the oath of allegiance provided in Section 3 of RA 9225 Q: How do you reacquire citizenship through RA 9225? A: Also by taking the oath of Allegiance Q: When is RA 9225 used as means of Reacquisition or Retention? A: If you are naturalized before the implementation of RA 9225 or before August 29, 2003 – reacquisition If you are naturalized after the implementation – retention Q: Is it not that RA 9225 promotes Dual Allegiance? A: No. because the latest allegiance that you have taken is that of Philippine allegiance. This however does not mean that you have renounced your foreign citizenship. Upon taking the oath, this just means that the burden of dual allegiance is transferred to the foreign country of which you are also a citizen. Q: Can a person who reacquired or retained citizenship through the oath of allegiance run for office? A: No unless he or she should personally renounce the other citizenship (personal and sworn renunciation). This is provided for in Section (2) of RA 9225

Take note: the qualification of Filipino citizenship and registered voter is separated. Thus, it does not follow that

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SOVEREIGNTY Supreme and uncontrollable power inherent of the state in to govern itself Power of the state to govern persons and things within its territory

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Q: What are the kinds of Sovereignty? A: 1. Legal – authority which has the power to issue final commands 2. Political – power behind the legal sovereign, or the sum total of the influences that operate upon it Q: How does the state governs itself (Characteristics of Sovereignty)? A: 1. Internal (territoriality) – full control of domestic affairs with in its territory 2. External (independence) – which is freedom from external control; freedom from external control is limited bec. we enter into treaties and stipulations; freedom from eternal control; direct its relations with other states, also known as independence OTHER CHARACTERISTICS: 1. Permanent 2. Exclusive 3. Comprehensive 4. Absolute 5. Indivisible 6. Inalienable 7. Imprescriptible

Case: Reagan vs CIR Q: Can you give a portion of your sovereignty? (In the case: allowing the US to take control of Clark Field Airbase) A: NO, because sovereignty is indivisible There is a difference between Sovereignty and Exercise of Sovereignty Exercise of Sovereignty – it is what you give to the foreign or international community when you enter into agreements or when you allow them to control a portion of your territory Q: When you waive a portion of exercise of sovereignty, is this not diminution of sovereignty? A: No, rather it is considered assertion of sovereignty. This is the Doctrine of Auto-Limitation: Jellinek – “is the property of a state-force due to which it has the exclusive capacity of legal self-determination and self restriction” The state may choose whether they want to exercise or not to exercise its sovereignty. You cannot give up something you don’t have, thus, giving it up means asserting your sovereignty Westphalian Concept of Sovereignty (Jackson)

The principle of the sovereignty of states and the fundamental right of political self determination (right or control for internal affairs) The principle of legal equality between states (bec. of external aspects, no state shall dictate to another state) The principle of non intervention in internal affairs control is manifested through enforcing laws (internal)

Right of self determination – no control from other states. Westphalian – looks at the state as sovereign (look at the principles)

RELATED CONCEPT: DOCTRINE OF NON- SUABILITY OF THE STATE Aritcle 16 Section 3 The State may not be sued without its consent Q: given that provision, can you file a case against the state? A: Yes, provided that the state gives its consent. You will need the consent if it is established that the suit you filed is against the state. (if this is not so then you have a case which is not an actual case) Q: Why can’t you sue the state? A: Philosophy: How can you sue the authority who creates the rights that you exercise… 1. Holmes Philosophy: a sovereign is exempt form suit on the logical and practical ground that there can be on legal right as against the authority that makes the law on which the right depends. If we sue the state, then we sue ourselves (bec. of the principle of “of the people, by the people, for the people”) 2. Case: Providence Washington Insurance Co. vs. Republic of the Philippines: “the loss of governmental efficiency and the obstacle to the performance of its multifarious functions are far greater if such a fundamental principle were abandoned and the availability of judicial remedy were not thus restricted” We can be flooded by many cases if this is allowed. Its time and money will be spent for many cases. (Sociological Basis) 3. It’s the constitution itself that forbids us to sue the state (Article 16, Section 3 of the 1987 Constitution) Q: When is a suit one against the state? A: 1. When the Republic is sued by its NAME (this is only an indicator, not a conclusive one) Case: Del Mar vs. PVA Q: Is the case of del Mar a suit against the state? (even if you sue the state with its name) A: No. It is only a suit against the state if in the end, the case will require the state to give a positive or affirmative action on the part of the state. In the present case, there is nothing for the state to do because It already directed the funds. What is left to do is the proper disbursement of the funds. (so it is considered a suit against the state if there is something that you’re asking the state to do for you: Either it will result to disbursement of funds or release of property)

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Case of US vs. Ruiz (even if you sue the state with its name) Q: Is the case of US vs. Ruiz a suit against the state? (even if you sue the state with its name) A: No. It cannot be a suit against the state since US here, in entering the contract, is performing his governmental function. You can only be sued if you entered into a contract wherein it is proprietary. 2 types of contracts: a. Proprietary b. Governmental function –In this case the projects are an integral part of the naval base which is devoted to the defense of both the United States and the Philippines, indisputably a function of the government of the highest order; they are not utilized for nor dedicated to commercial or business purposes. Q: If state enters into a proprietary contract, can it be sued? A: Yes, because in this case, you descend your status. Because by entering into business transaction it descends into the level of private individual. So then the state cannot claim immunity. Immunity is there bec. of the virtue that it is sovereign and it is sovereign bec. it performs governmental function. 2. When the suit is against an UNINCORPORATED government agency Case of Republic vs. Feliciano (filed against LRA or NARRA) This one is a suit against the state because LRA is representing the state Case of PNB vs. CIR -

Illustration: When you file a case against DPWH, bec it is merged in the govt. machinery, the one who will pay for what is asked is the STATE. Ex. GSIS - When you have your own charter, you have your own legal personality. You exist independently from the state. If you ask for money, they will not need to go to the STATE. (Cities have their own charter, thus they can be sued. It is not necessary that your charter will stipulate a provision that they can sue and be sued. As long as they are created by a charter, they can be sued) 3. When the suit is on its face against a government officer but the case is such that ultimate liability will belong no to the officer but to the government Case: Lansang vs. CA (still acquitted though bec. bad faith was not proven; in this case, lansang was being sued in his personal capacity evident in the complaint. He was accused to have personal motives) Q: How can a suit against a public official be a suit against the state? A: It can be a suit against the state only if the acts done are in the performance of their official duties. Moreover, the rule is that the suit must be regarded as one against the state where satisfaction of the judgment against the public official concerned will require the state itself to perform a positive act, such as appropriation of the amount necessary to pay the damages awarded to the plaintiff. Q: Why is it stipulated “in the performance of their official duties”? A: This is because the officials are agents of the state. They only execute the orders of the state (you have to indicate in your complain that you are suing in his official capacity)

This one is NOT a suit against the state because it has its own corporate identity (who has sued: PHHC)

Q: Who will pay? A: The state. Because the suit is in your official capacity which is ordered by the state.

Q: When is a case against government agency a case against the state? A: You first make a distinction if the agency is incorporated or unincorporated. It is a case against the state if you sue an unincorporated agency.

Q: What if you sue against his personal capacity for acts which are unlawful. Will it be a suit against the state? A: No, because in this case, one has exceeded the performance of his or her action. State will not pay the excess of your performance. (you have to prove that the officer acted in an unlawful and injurious way)

Q: When are you considered an incorporated agency? A: When that agency has a charter of its own

Case: Calub vs. Court of Appeals (in this case, it was a suit against the state because they acted in accordance to their duty (discharge of official duty)) Q: What if you sue X in his official capacity, but it is alleged and established that he performed it in acts that are malicious or tainted in corruption. Will that be considered as a suit against the state? A: NO.(opinion of the CA which was later set aside) It is still a personal liability. A suit against a public officer who acted illegally or beyond the scope of his authority could not be considered a suit against the state

-

If it doesn’t have a charter it is considered to be merged in the whole governmental machinery. (ex. BIR, BOC, DPWH) GSIS, PAGIBIG – existed bec. there is a charter that created it Q: Why is a suit against incorporated agency not a suit against the state? A: This is because they have a personality separate and distinct personality from the state. Moreover, as a member of a corporation, a government never exercises its sovereignty. It acts merely as a corporator, and exercises no other power in the management of the affairs of the corporation, that are expressly given by the incorporating act."

Q: What happens next if it is a suit against a state? A: The effect is dismissible by the court either upon motion of the government lawyer (when you ask the court: “I move to dismiss the case early) or motu proprio (instance of the court even without the request of government lawyer. State on its own accord will dismiss the case if it is clear that there is no consent)

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If you don’t want the case to be dismissed, the next thing you do is to get consent. CONSENT Case: Republic vs. Feliciano The SC held that the Proclamation of the President of the Philippines (recognizing private rights to the land) cannot be the source of consent, since the Proclamation is not a legislative act Q: Are there any other expressed consent aside from a legislative act (law)? A: NO other way. The only way is through the form of law (legislative act) Two kinds of Law(consent): Case: Merrit vs. GPI 1. General law – act 3083 (money claim), art 2180 NCC (acts of omission of the states of SPECIAL AGENTS (who has fixed duties but at that time performed a different function due to a special order but such order be issued in an official statement) 2. Special law – peculiar only to certain persons; what Merrit obtained Act 2457 (an act applicable to him; You acquire this act by requesting the legislative department to enact it) 

Scope of consent - Act 3083; When a money judgment is given against the government, the ordinary rule for execution would not apply, for the consent of the government to be sued is only up to the point of judgment. If it does not pay, it cannot be compelled to pay by attachment or otherwise

All others are implied (implied consent) 1. State is the one who commences or initiated the case… you can file a counter suit, state becomes vulnerable to counterclaims 2. Forced sale/expropriation: when one will be paid just compensation when his property will be used by the government which is to be determined by the court, thus the state opens the possibility of being sued (It opens the possibility for a case because compensation is determined only by court) 3. When the state enters into a business contract government is deemed to have descended to the level of the other contacting party and divested of its sovereign immunity from suit with its implied consent Q: What will happen after the state gives its consent? A: There will be a trial. But it doesn’t mean that there is a liability. All the consent means is an opportunity to prove that the state is liable. Case: RP vs. Villasor The consent to be sued is only up to the judgment and not to the execution thereof because public funds are reserved only for specific purposes. Judgment can only be enforced if there is a separate, specific appropriation for it made by congress

Execution – consent to be sued extends only to the proceedings anterior to execution (Prior to execution. So you need another form of consent that the state should make certain appropriation in compliance with the consent and judgment (there should be a law again giving you the appropriation) MANDAMUS – compel the government to comply with the judgment

GOVERNMENT – is the agency of the state (principal) through which the will of the state is formulated, expressed and carried out - Government is that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them. (Case: US vs. Dorr) - Government is the aggregate of authorities which rule a society. (US v Dorr, 2 Phil 332, 339). Q: What is the difference between government and administration? A: A government is permanent but an administration is transitional In the case of the state, the instruction of the principal to the agent is to do that which is beneficial. That is why… “State can do no wrong” – mistake is thus attributed to the agent, not the state. If you have an agent not doing what was asked, then the state can replace the agent (Doctrine of Direct State Action: may be carried out by the people through a revolution [Doctrine of Revolution]) Q: When state changes the agent through a direct state action under the doctrine of revolution, is the revolution legal? A: Yes, it can be legal. Q: If a revolution is legal, how can you have a crime of rebellion? A: A revolution is legal when it becomes a state action. It becomes a state action if the revolution succeeds. (If Revolution is successful then it is a state action. If it is not successful then it will be considered as rebellion ) Case: Concurring Opinion of Mendoza: Estrada vs. Arroyo Q: Is revolution considered constitutional? A: NO. The constitution prescribes for its methods to change its administration, however, a revolution is not considered as one of its ways “Indeed, the right to revolt cannot be recognized as a constitutional principle. A constitution to provide for the right of the people to revolt will carry with it the seeds of its own destruction. Rather, the right to revolt is affirmed as a natural right. Even then, it must be exercised only for weighty and serious reasons.” Sovereignty resides in the people – all it allows is that sovereignty be expressed in the ballot. Anything outside that is unconstitutional. (Article 2 section 1) Q: Given the provision of Article 2 section 1, is a revolution considered then as unconstitutional?

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A: No. What makes something unconstitutional is when the constitution says it is unconstitutional. The fact that it is not at all mentioned in the constitution, it is then considered as extraconstitutional (not in the constitution but also not prohibited by the constitution)

warranted by the laws of the rightful govt. 5.

Edsa 1 – extra-constitutional (exercise of the people on their right to revolt (natural right) Edsa 2 – intra-constitutional; freedom of expression.. the people rallied and erap gave in to it 6. Kinds of Government 1. Based on number of persons holding power a. Monarchy – 1 ruler b. Oligarchy – aristocracy; held by a few c. Democracy – majority of the people i. Direct or pure – people’s will directly expressed by them ii. Indirect or republican – ruled though a government by the people 2. Based on relationship between legislative and executive a. Presidential – separate Legislative and Executive b. Parliamentary – fused 3. Based on power of central authority a. Unitary b. Federal 4. Other classification Case: Co Kim Cham vs. Tan Keh a. De jure – if it has legal title but no power or control either because this has been withdrawn form it or because it has not yet actually entered into the exercise thereof (established by legitimate sovereignty) b. De facto – actual control but no legal title (established in defiance of legislative sovereignty) Q: What are the kinds of de facto Governments: a. Formed through rebellion - The government that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter. b. Formed through insurrection - That established as an independent government by the inhabitants of a country who rise in insurrection against the parent state. c. Formed through occupation - That which is established and maintained by military forces who invade and occupy a territory of the enemy in the course of war, and w/c is denominated as a government of paramount force, like the Second Republic of the Philippines established by the Japanese belligerent.  Its existence is maintained by active military power w/in the territories, and against the rightful authority of an established and lawful government  During its existence, it must necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, as wrongdoers, for those acts though not

Function of government a. Ministrants – optional functions of government; those undertaken to advance the general interest of society, such as public works, charity, and regulation of trade and industry b. Constituent – compulsory functions which constitute the very bonds of society But this is blurred, you have to do both functions Principle of government a. Doctrine of parens patriae: “guardian of the rights of the people” Case: GP vs. Monte de Piedad (sovereign will is made known to us by legislative enactments; legislative or government of the state has the right to enforce all charities of public nature, by virtue of his superintending authority over the public interest)

PRINCIPLES AND POLICIES Article 2 Principles: binding rules that must be followed whether or not they pass a law Policies : guidelines to be observed (to guide the state in passage, enforcement and application of laws); guidelines which set out a goal to be reached, generally an improvement in economic, political, or social feature of the country The Philippines is a Democratic and Republican State Section 1: Principle of republicanism (democratic and republican state) Republican – people rule through their representatives. (we are not entirely republican because there are instances that we act directly instead of our representatives. Ex: people’s initiative) Under this principle, the Philippines is a democratic state that is, a government for, of, and by the people. But it is not a pure democracy. Thus, while it is true that the people are the possessors of sovereign power, it is equally the case that they cannot exercise the powers of government directly, but only through the medium of their duly elected representatives. 

Their participation in government consists of : (Case: Tolentino vs. COMELEC) 1. Suffrage electing the officials to whom they delegate the right of government. 2. Plebiscite  Ratifying the Constitution  Approving any amendment thereto  With respect to local matters, approving any changes in boundaries, mergers, divisions, and even abolition of local offices  Creating metropolitan authorities, and  Creating autonomous regions 3. Initiative and referendum enacting or proposing laws, local or national, in a referendum. 4. Recall (Under the Local Government Code.) [as added by Prof. Barlongay.]

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It is for the court to decided if an International Law is to be considered as a GAPIL (Not all treaties are GAPIL) 

Features of Republicanism: 1. It is a govt of laws and not of men; 2. There is periodic holding of elections; 3. There is observance of principle of separation of powers and of checks and balances; 4. There is observance of the role that the legislature cannot pass or enact irrepealable laws. Case: Tolentino vs COMELEC – necessary to emphasize democratic portion of republicanism

Section 3: Civilian authority is supreme over the military Civilian authority is AT ALL TIMES supreme over the military Q: how is such supremacy institutionalized? A: The president of the country is a civilian but is the commander in chief of the armed forces. Civilian officials are superior to military only when law makes them so

Q: why mention democratic and republican? (Pardonable redundancy) A: Because, you want to recognize the instances when people act directly and not though their representatives. (people’s organization and initiative)

Q: Is it possible, during exceptional circumstances that the military be over civilians? A: NO because section 3 specifies AT ALL TIMES. Thus there is no way that military be over civilian. That is why president is the head or commander in chief of armed forces. (President – highest civilian officer)

Section 2: The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations

Government as Protector of the people, and people as defender of the state

What we are renouncing is AGGRESSIVE WAR General Accepted Principle in International Law

Municipal Law (domestic law, in contrary distinguished to international law)

DOCTRINE OF TRANSFORMATION – if this is followed, the scenario is if I am in State A and I want to invoke a GAPIL, the only way I can invoke it in State A if there is be a domestic legislation that makes it into a municipal law (it is when it is reduced to a domestic law that it can be invoked in a state) DOCTRINE OF INCORPORATION – By the mere fact that it is GAPIL it automatically forms part of the law of the land. Therefore, it can be invoked even if there is no domestic law converting it into a domestic legislation. (This is what we practice in the Philippines: adopts the generally accepted principles of international law as part of the law of the land) Case: Philip Moris vs. CA Q: What if GAPIL conflicts with Domestic Law or Domestic with GAPIL? (Radically different) A: The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. The later enactment is what will prevail. Case: Secretary of Justice vs. Lantion Q: But if GAPIL conflicts with the Constitution? A: Then it is clear that the constitution will have to prevail

Section 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 under conditions provided by law, to render personal, military or civil service. Section 5: The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare, are essential for the enjoyment by all the people of the blessing of democracy.

Section 6: The separation of Church and State shall be inviolable. (Statements couched in the negative is MANDATORY) 2 concepts of religion in constitution: 1. No establishment of religion 2. Free exercise of religion should be guaranteed Separation of church and State 1. State cannot establish a religion (Freedom OF Religion is equal to Freedom FROM Religion) Case: Aglipay vs. Ruiz o it was not establishment of religion because the law is primarily secular (in purpose) never mind that there are religious benefits as long as these are just incidental. The main objective was to promote tourism which was a secular objective. (other example: fiestas such as Sinulog) OMA Case o This was for the national, cultural community (primarily secular) and not for religious benefits or establishments -

If general-general: the newer law will prevail

However, Penalizing immorality is somehow imposing religion

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2.

Free exercise of Religion - once you have opted a religion that you are free to exercise… o 2 aspects of free exercise  Freedom to believe (is absolute)  Freedom to act in accordance to your belief (there is limitation) – by considerations of public welfare

environmental balance will not be irreversibly disrupted: whatever we do will affect succeeding generation)

Q: if we are not supposed to establish Religion, why are there provisions that somehow establish such? (ex. Preamble: Almighty God or Divine Providence in the Constitution; Holidays; Immorality) A: These provisions merely recognize the influence of religion (elevating influence) to the people and not of Religion alone. Precisely why religion is considered as part of our culture.

Case: Basco vs. Pagcor Pagcor should not be taxed coz there is a law. But manila said that this cannot be so because. Manila is considered autonomous. However, SC made clear that we are still unitary but decentralize (not of power but of functions: functions are devolved to local government units but they do not have the power to oppose the national law) Autonomy is nothing but decentralization of functions Of two kinds decentralization o Power o Functions

Q: But why allow tax exemptions? A: Philosophical explanation: If you don’t give exemptions, you will have religion continually interacting with the state with regards to taxes. (It will be chaotic) It is important for the non establishment of religion to prevent excessive entanglement of religion and state. Immorality There are concepts of morality that is not based on religion but society believes it so (SECULAR MORALITY). And when there are civil laws that makes immorality ground for rejection or termination, this is because of secular morality. Q: Why are there provisions that priests, etc can be paid when they are assigned to armed forces, penal institution, govt. orphanage and leprosarium? A: Because you want to address the free exercise of religion in the areas where there is limited freedom. It has been said that there is an inherent contradiction between non-establishment of religion and free exercise of religion. (other articles on separation of church and state: based on photocopy) State Policies Section 10: The state shall promote social justice in all phases of national development Case: Calalang vs. Williams – prohibits animal drawn vehicle is not a violation of social justice SC – is not sympathy towards the certain group; its nothing but seeing to it that laws are being humanized and that laws are equalized (definition of social justice) Section 15: Promotion of Health and Ecology Case: Oposa vs. Factoran Q: Is there such a thing as right of balance and helpful ecology? A: Yes, even if it is not placed in Article III (Bill of Rights). It’s no less than a civil and political right because it involves self preservation and perpetration. (inter- generational responsibility: responsibility of the state to preserve and to see to it that ecological or

Section 25: Autonomy of Local Governments -

Guaranteeing autonomy of local government. Autonomy: right to be left alone

Section 28 Right to full public disclosure Full public disclosure of public interest and is subject to limitations as may be provided for by law. Case: Valmonte vs. Belmonte Considering the nature of its funds, the GSIS is expected to manage its resources with utmost prudence and in strict compliance with the pertinent laws or rules and regulations. In sum, the public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers make the information sought clearly a matter of public interest and concern. Case: Akbayan vs. Aquino The Court holds that, in determining whether information is covered by the right to information, a specific “showing of need” for such information is not a relevant consideration, but only whether the same is a matter of public concern. When, however, the government has claimed executive privilege, and it has established that the information is indeed covered by the same, then the party demanding it, if it is to overcome the privilege, must show that that the information is vital, not simply for the satisfaction of its curiosity, but for its ability to effectively and reasonably participate in social, political, and economic decision-making

DOCTRINE OF SEPARATION OF POWERS Case: Dissenting opinion of Puno in Macalinal vs. COMELEC Concept: 4 PREMISES: 1. In every government there are three sorts of power: legislative (make laws); the executive (enforce the law) and judicial (interpret/apply law) 2. These powers are given to 3 departments 3. These dept are separate and distinct. Coequal 4. Being separate and distinct, the exercise of one in usurpation in the power of another is declared null and void

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Q: Why is there a need to separate the exercise of power? A: This is because, if the same man would exercise the three powers: “there would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and that of trying the causes of individuals.” Separation of powers is founded on the belief that by establishing equilibrium among the 3 power holders, harmony will result, power will not be concentrated and thus tyranny will be avoided Reason: Q: Where do you find the concept of separation of powers in the constitution? A: You cannot find the term of separation of power in the constitution. Article 6, 7 and 8 are the manifestations that the constitution applies the said principle. What are discussed are: DOCTRINE OF CHECKS AND BALANCES Exec to congress – veto power of the president (vetoes the bill) Exec to judiciary – appointment and pardoning of power Leg to exec – override the veto of pres; confirmation of appointments; appropriation; revoke the declaration of marital law of president; power of impeachment Leg to judiciary – power of impeachment ; pass a new law amending the law that was made basis of the court on its previous decision Judiciary to congress – judicial review Judiciary to leg – judicial review

BLENDING OR SHARING OF POWERS Ex. Congress and exec share power 1. making laws 2. Appropriation of laws power 3. Giving Amnesty 4. Treaty making

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