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Intensive Review in Constitutional Law (Transcripts)

Essential requisites of an effective written constitution:


1. Broad
2. Brief
3. Definite.
Kinds of Constitution (According to how it originated)
1 Enacted or Conventional if it was deliberately made for a certain period of time
by the people themselves
4. Cumulative or Evolved one that is a result of a day-in and out activities of the
people. It takes a number of not just days but years or centuries. In an unwritten
constitution, some of the sources are the conventions, traditions, and customs. A
practice is not a convention or a custom if it has not been followed for a number of
years. It takes time, so it is cumulative. In the parliament, it does not make
parliament acts or laws only for a day or two, for as long as the government is
operating, they continue to create parliament acts which form part of the
constitution (this is an example of cumulative constitution).
Constitutions of the Philippines
1 Malolos Constitution - drafted by Felipe Calderon, et. al.
5. Revolutionary - ie. Katipunan
6. Constitution of the Republic of Biak na Bato - by Aguinaldo
7. The American Regime and the Organic Acts
8. 1935 Constitution (enacted pursuant to the Tydings-McDuffie)
9. 1973 Constitution
10.1987 Constitution (Pursuant to Proclamation No. 09 to draft a constitution)

1987 Constitution - took effect upon the ratification by the people. Under
Section 27, Article 18 of the 1987 Constitution:

SECTION 27. This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite held for the purpose and
shall supersede all previous Constitutions. The above provision is different from the
1973 Constitution as the latter took effect upon the declaration of President Marcos
under Presidential Proclamation 1102. Hence, it was duly ratified on January 17,
1973.
In De Leon v Esguerra, the effectivity was based on the date the people ratified it
pursuant to the provision of the Constitution (Section 27, Article 18). The effectivity is
important because there were provisions in the 1973 Constitution that were not
carried to the 1987 Constitution (ie. death penalty - abolished in the present
Constitution except for compelling reasons)

The Philippine Constitution is a rigid constitution as opposed to a flexible


constitution. A procedure has to be followed:

1. Proposal Changes that can be made: amendment or revision. In Lambino v


Comelec, there is amendment when the only change pertains to certain
provision/s without changing the principle of the Constitution. In revision,
there is overhauling of the constitution, the change is on the principle.
Examples: term of office of the president - an amendment as it is a
change of the system, not a change of principle; a change from presidential to

parliament - a revision as it changes the form of government, and thus


practically the entire constitution.
2. Submission
3. Ratification

Who can propose amendment and revision


The President cannot propose a revision nor amendment.
This was settled in the case of North Cotabato. Presidents Arroyos signing of the
MOAD for the establishment of a juridical entity (a sub-state) is a proposal to
the revise the Constitution. This cannot be done as the President does not have
that power.
There were, however, times when the President had the power to propose
revisions to the Constitution. One was the time of Martial Law when then
President Marcos possessed legislative powers. Another was during the time of
then President Corazon Aquino under the revolutionary government when she,
in the exercise of her legislative powers, issued a Proclamation No. 3
promulgating the Freedom Constitution. So if the question in the Bar Exam is
was there a time when the President can propose amendments to the
Constitution? Yes. But under the 1987 Constitution, the President does not
anymore have that power.

Only the following can propose revision or amendment:

1) Congress
o Can propose amendments and revisions
o Requires vote in the Senate and in the House of Representatives
o This is an exercise of Congress power as a constituent assembly, which
is distinct from its power as a lawmaker. These are two independent
powers. When they appropriate funds for the operation of the constituent
assembly, then they are acting as ordinary lawmakers.
2) Constitutional convention
o Can propose amendments and revisions
o How is a ConCon created?
Congress, in its discretion, can create a ConCon by 2/3 vote.
If the 2/3 vote cannot be obtained, the remedy is for Congress to
submit it to the people in a referendum, asking the people if they
want to have a ConCon in order to propose the changes.
o The proposal is then submitted to the people. The requirement is that it
should not be given or submitted to the people on installment
basis/piece-meal. The whole document should be submitted to the
people so that they will understand the relationship between the parts of
the proposals.
o Then, there will be a plebiscite to be called which should not be earlier
than 60 days nor later than 90 days from the approval of the proposal.
o Majority of the votes cast in the plebiscite is needed for
approval/ratification/make the proposal effective. In the case of the
1987, it took effect on Feb. 2, 1987 (De Leon vs. Esguerra).
3) The people, in general
o People can only propose amendment, not revision. (Lambino vs. Comelec)

o
o
o

Must be initiated by at least 12% of the registered voters with at least 3%


from each legislative district. These 2 requirements must concur.
Cannot be as often as once every 5 years.
In the Santiago case, the Supreme Court declared that RA 6735
(Initiative and Referendum Act) is not sufficient to provide for a system of
amendments to the Constitution. It only clearly provided for amendment
to statutes. Although Sec. 32, Art. VI of the Constitution mandates
Congress to pass a law to provide for the procedure of amendment to the
Constitution through initiative and referendum (the provision is not selfexecuting but requires an enabling law), the law passed was
unfortunately insufficient for this purpose.
In Lambino vs. Comelec, the Supreme Court ruled that because the
people are the authors of the proposal, the petition should be signed by
the people. Copies of the petitions are not as much as the number of
signatures, indicating that the people signed without reading. Thus, the
petition was not given due course.

Forms of government established


If the government is democratic that means we have a democratic Constitution.
If the government is presidential then the Constitution is Presidential.
Parts of the Constitution
1) Constitution of sovereignty
o These are the provisions on amending the Constitution
2) Constitution of liberty
o Bill of rights
3) Constitution of government
o Powers and functions of the government.
Construction of the provisions of the Constitution
-

If the word is ordinary then it has to be given ordinary meaning. But if it has a
special meaning or if you are in doubt, you go into the intent of the framers of
the Constitution.

Provisions are presumed to be self-executing, as a general rule. Exceptions are


those which only provide guidelines or principles for executive action, such as
Art. II on Declaration of Principles and State Policies. These cannot be used as
bases for judicial action because legislative enactment is needed for these to be
implemented.

The provisions are mandatory, as a general rule. There are certain provisions,
however, that are merely directory, such as the giving of highest priority to
education in the budget (Carague case).

Judicial review

Judicial power the power to settle controversies involving rights and obligations
based on an existing provision of the Constitution or a statute, and to determine
whether there has been grave abuse of discretion in the exercise of powers of the other
branches of government.
Judicial review the power to test the validity of executive and legislative actions in
relation to the Constitution.
In the case of Aquino vs. Araullo, the Supreme Court said that the previous
constitutions equally recognized the extent of the power of judicial review and the
great responsibility of the judiciary in maintaining the allocation of powers among the
3 great branches of the government.

What judicial review includes


Judicial review includes:
1. Checking
If the law or executive act is contrary to the Constitution, the court will declare
it as unconstitutional, therefore null and void ab initio.
2. Legitimating
If it is in conformity with the Constitution, the court will ratify or legitimize the
law which is presumed valid when enacted.
3. Educating
Ultimately, may it be checking or legitimating, the court educates the judges
and lawyers by providing guidelines, principles and precepts because in the
event that the same issue will arise then they will be guided accordingly in how
to resolve the conflict.

Who exercises judicial review


Judicial review is not exclusive to the Supreme Court. It is also exercised by the lower
courts. Although, ultimately, the Supreme Court makes the final determination
whether the act is in conformity with the Constitution, lower courts like the RTC may
also review.
In Garcia vs. Drilon, it was held that the Family Court is a court of the same rank as
the RTC which has the power to review the constitutionality of RA 9262 as being
allegedly discriminatory against the males.
The bases for the power of lower courts are:
a. Sec. 1 Art. 8 which provides that judicial power is vested in the Supreme
Court and such other courts as may be established by law.
b. Sec. 5 Art. 8 on Supreme Courts review of validity of statutes, acts,
ordinances, etc. If the lower courts will not exercise the power, then there
is nothing for the Supreme Court to review.
However, the lower courts are cautioned. Although they must not shy away from the
duty of determining whether the act is in conformity with the Constitution or not, they
must exercise the power with utmost prudence and caution because it will create
disability.
An example is the ordinance on the clamping of illegally parked vehicles. One RTC
branch in Cebu City says it is unconstitutional as the owner is not being informed that

the vehicle will be clamped and towed, thus property is being taken without due
process of law. The decision became final for failure of the losing party, the Cebu City
government, to appeal. In another case brought before another RTC branch, the same
question was raised. This case eventually reached the Supreme Court and it was ruled
that such act of clamping is not unconstitutional. There is no need to inform the
owner because he was not even there in the first place and the vehicle is already
obstructing the traffic flow. One of the arguments of the party is that there is already a
judgment by an RTC that the act is unconstitutional and thus the SC must abide.
This is of course, incorrect. Only decisions of the SC bind the whole world. Those of
the lower courts bind only the parties.
Reason for judicial review
The basic reason for judicial review is to uphold the supremacy of the Constitution,
not the supremacy of the Supreme Court nor the judiciary.
Requisites for judicial review
The power of judicial review needs to be exercised with caution, lest it will violate the
principle of separation of powers and intrude into the sphere of a co-equal branch of
government. Thus, there are certain requisites that must be complied with for the
exercise of the power of judicial review.
Requisites for the exercise of judicial power:
1) Actual case or controversy
2) Raised by the proper party
3) Raised at the earliest opportunity or time
4) Issue of constitutionality is the lismota or ultimate issue
On actual case or controversy
- When we say PREMATURE, no right yet has been established or ripened; no
violation of a right has been done yet that would call for a review of the law.
EXAMPLE: A law is going to be passed that will result in the loss of ones job
(reorganization of office). To stop this, he asks the court to enjoin the
implementation of the law. By doing this, he questions the validity of the law
for being violative of his security of tenure. Is there an actual case or
controversy? NONE, because he has not lost his job yet. In fact, the law hasnt
been enforced yet. The court should therefore not entertain such petition,
because then it would amount to asking for advice or opinion of the court
based on a hypothetical situation. This would then be a violation of the
separation of powers.
The issue has to be a continuing one. It has to exist all throughout the case, until it is
resolved by the court.
- It should not become MOOT AND ACADEMIC (It does not exist anymore).
- Formento v Estrada: Erap ran for President. The issue was as to his qualification
to run as president. The case was dismissed by the Supreme Court because,
ultimately, he was not elected. Thus, the issue is moot and academic.
- Arroyo case: President declared a state of rebellion. Subsequently, this was
lifted. The SC dismissed the petition questioning the Presidents declaring of a
state of rebellion since the issue had already become moot and academic as
there was no more rebellion to review as it was already lifted. Although, in the
Drilon case, The SC proceeded in reviewing the issue of constitutionality of the

declaration of a state of national emergency, notwithstanding the fact that the


declaration was lifted.
What is the EXCEPTION to this rule? When will the court decide on the case
despite it already being moot? CASE: David et al. v Arroyo: The moot and
academic principle is not a magical formula that can automatically dissuade the
courts from resolving a case. The cases must still be decided however moot and
academic when:
There is clear/patent violation of the Constitution.
Exceptional character of the issue; is of transcendental importance or of
paramount interest
There is a possibility that the issue will be repeated in the future and will
evade any review
Requires formulation of controlling principles to guide the bench, bar and the
public
Note: these requisites were also repeated in Belgica v Ochoa (PDAF), where
even though the practice of PDAF was already discontinued, the SC still
decided on the case because there was still a controversy. The character of the
issue is of transcendental importance or of paramount public interest.
Nature of the question that may be subject of judicial review: GENERALLY has to
be a question pertaining to the constitutionality or legality of the executive act or
law, to be a justiciable question. Otherwise, it is a political question.
What is a political question? It is one where what is questioned is the WISDOM or
RATIONALE of the law. Such question can only be answered by the people in their
sovereign capacity, which capacity has been delegated to either the president or to
congress.
o

EXAMPLE: On the MORALITY of the RH Law. This is not subject of


judicial review. What can be questioned are only matters relating to the
Constitution, rather than the reasoning on why the law was passed
(Imbong v Ochoa). Political questions are beyond the ambit of judicial
inquiry.

What is the EXCEPTION to this rule? When there is GRAVE ABUSE OF


DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION. Thus,
even if political questions are the prerogative of the legislative or executive
branch, this can still be inquired into by the judicial department exercising its
judicial review power.
Ochoa case: On the issue of health, as guaranteed under the Constitution, and
on womens right. If there is any question on its validity or constitutionality you
have to refer to a Constitutional provision rather than on to the reasoning why
the law was passed because that is beyond the realm of the courts to inquire
into as that is being stead in Congress to determine as to the rationale or the
wisdom of the enactment of the law.

Subject of Judicial Review:


As a rule, only justiciable questions
Political questions are beyond the ambit of Judicial Inquiry
Except:

when there is questions of grave abuse of prerogative or discretion amounting to lack


or excess of jurisdiction.
There are even questions of political in nature or prerogatives of the Executive or
Legislative Department can be inquired into by the Supreme Court exercising its
Judicial Review power.

Elements of Judicial Review:


(1) He must be a proper party;
One who has the legal standing to appear in court
Who stands to the benefit or to be aggrieved by the decision of the court on the issue.
If one who is directly injured or in the imminent danger of sustaining injury, in other
words, injury must be direct or potential. So, what we follow in this jurisdiction is
Direct Injury Principle.

Two exemptions of the Direct Injury Principle:


1. Question on the validity of the ratification of the Constitution, any citizen can be
a proper party even if he is not directly injured, pertaining to the ratification or any
amendment or changes of the Constitution;
2. Questioning the factual basis of the declaration of the Martial Law or of the
suspension of the privilege of the Writ of Habeas Corpus, even if he was not
arrested or any warrant or account of the suspension of the privilege of the Writ of
Habeas Corpus he can still be a proper party to question the validity of the Declaration
of the Martial Law or suspension of the privilege of the Writ of Habeas Corpus.
Oposa vs. Secretary of DENR: where the minor children are considered as the
proper party being the representative of the next generation, that if there is no
stopping to the illegal logging or the cutting of trees, it is certain as the sun will
rise in the east and that there will be no trees for them to inherit. And they have
the Right to Healthful and Balanced Ecology under the Principle of
Intergenerational Responsibility.

Taxpayer:
When is a taxpayer considered a proper party?
Two instances:
When there is an illegal disbursement of public funds. Or anomalous or irregular
disbursement of public fund or a misapplication of public fund. Then in which case a
taxpayer is a proper party;
When it involves exorbitant impositions of taxes amounting to taking of property
without due process of law.
Voter:
When is a voter a proper party?
It must show that it pertains to his right of suffrage, right to vote or it affects his right
to run in public office.
Members of Congress:
Are they considered proper party questioning the validity of an Executive Act?
Yes. When it involves the prerogatives as members of Congress or it impairs the
exercise of their legislative powers.
Drilon questioned the validity of EO 464 (re: invocation of Executive Privilege by
Cabinet Members) and the Supreme Court sustained the personality of Drilon as a

proper party because the law being questioned impairs a Legislative Prerogative insofar
as Legislative Inquiry is concerned.

Government, in general:
Can it be a proper party?
Yes.
In one of the cases mentioned, the question of the constitutionality of the Probation
Law was raised as it was applied only in provinces where there are available funds, so
if you were convicted in a province where there is no available funds, you have to serve
your sentence even if the penalty is just six years or lower and it is considered a
violation of the Equal Protection clause and that is the question of constitutionality of
the government itself and the Supreme Court sustained the position of the
government as a proper party.
Corporate Entity:
Can a corporate entity be a proper party?
Yes.
The party suing must have a substantial relation to the third party and the third party
cannot assert its constitutional right, the right of the third party will be diluted unless
the party of the court is allowed to espouse the partys constitutional claim.
Political Law vs. Civil Law (Proper party):
When we speak of a proper party here in political law, this is not the same as in civil
law when we have an actionable right. Otherwise, if you have no such actionable right
then you are not considered as a proper party. The case can be dismissed for the lack
of cause of action and that is not the kind of proper party in political law.
La Bugal-B'Laan Tribal Association, Inc. v. Ramos: as the case involves
Constitutional questions the Supreme Court is not concerned with whether the
petitioners are real parties in interest but whether they have legal standing. It is not
based on real parties in interest but whether the parties have legal standing.
Proper Party:
As a rule, proper party is required.
However, the requirement of proper party may be set aside as a mere procedural
technical principlewhen the issue involved is of transcendental importance or of
paramount of public interest.
David et. al. vs. Arroyo: where the Supreme Court said in the exercise of discretion
the Supreme Court may set aside the requirement of proper party even when the
petitioners have failed to show direct injury they are be allowed to sue under the
principle of transcendental importance of over-reaching of the significance of society or
of the paramount of public interest.
Ochoa case: on whether or not the petitioners are proper party, they were allowed to
intervene even if they may have no direct interest on the outcome of the case because
the issue involved is over-reaching or of significance of transcendental importance to
the society even if they are not directly injured by the act of the complaint of and they
were considered as proper party.
(2) It must be raised at the earliest opportunity of time:
which means that the earliest opportunity is when you filed your complaint you must
take that already questioning the constitutionality of the act either of the President or

the Congress. But, if you still have the chance to state that in your pleadings, at least,
you should have presented or you should have raised the issue during the
presentation of the evidence.
How do you go about that?
If you were the complainant, you state that in your complaint. If you were the
defendant or respondent, you should have stated that in your Answer to the issue on
of constitutionality, for example, you were the complainant, you say the law you are
asking for relief, such as, an injunction to stop the law which is contrary to the
Constitution, that must be stated in the complaint. But, if there was no mention at all
about it and you were the defendant and you use it as a defense then you should have
stated that in your Answer that the law is not unconstitutional.
Exception:
In criminal cases:
The issue of constitutionality can be raised anytime even for the first time on appeal.
Why? for an act to be considered a crime or an omission to be considered as a crime,
there has to be a law defining it as a crime, and if that law will be declared
unconstitutional, then it would be as if there is no law punishing the act and if there
is no law punishing the act then there is no crime committed.
Or the issue is jurisdiction? Anytime, may be criminal or civil because if the court
does not have jurisdiction then the proceedings are void and that can always be
challenged at any stage of the proceedings even for the first time on appeal.
In civil cases:
even if it was raised for the first time on appeal it can still be entertained by the court
if it is the lis mota of the case which means the case cannot be decided or the main
case cannot be decided on the merit without first resolving the issue of
constitutionality.
(3) The issue of constitutionality must be the lis mota or the ultimate issue:
to the extent that the case cannot be decided on its merit without first resolving the
issue of constitutionality.
In reference to the Separation of Powers, the courts should refrain from reviewing the
prerogatives of co-equal branches of government and must resolve the issue on other
grounds, if possible. For example, without going to the merit of the case, the Supreme
Court can dismiss the petition outright because the person who raised it is not a
proper party where that it is still premature or the issue has already become moot and
academic or the person who raised it is in estoppel or the court has no jurisdiction
without getting into the merit of the issue being complained of.
Basically, in order to maintain the separation of the three branches only when there is
grave violation of the constitution where the Supreme Court may look into the validity
or of the constitutionality of the act of complained of either of the President or that of
Congress.
If the court finds the law to be contrary to the Constitution, there has to be a
declaration that the law is unconstitutional. If it is in conformity with the
Constitution, then the declaration is that it is not unconstitutional (double negative).
If the law is declared unconstitutional:
Under the Orthodox (conservative) view, the law is considered void ab initio,
i.e. as if it has never been passed. It creates no office, affords no rights nor
creates no obligation.

Under the modern view, the law is considered valid until declared
unconstitutional, i.e. it is voidable. The operative fact doctrine is followed.
Operative fact doctrine doctrine that recognizes the existence of the law or
executive act prior to the determination of its unconstitutionality as an
operative fact that produce consequences that cannot be erased, ignored or
disregarded. In short, it nullifies the void law or executive act but sustains its
effects. It applies only to cases where (1) extraordinary circumstances exist; and
(2) the extraordinary circumstances have met the stringent conditions that will
permit its application.
For reasons of equity, it may not be fair and just to simply ignore the effects of
the law which took place before it was declared unconstitutional.
- An example was the DAP, which was eventually declared
unconstitutional. There are already posts, bridges and other projects installed
prior to the declaration.
- In the case of Chavez vs. JBC where the issue is the composition of the
JBC, the practice was to have 2 representatives in the JBC coming from
Congress while the Constitution requires only 1 representative each from the
executive, legislative and judiciary. The SC eventually declared that the practice
of having 2 representatives is void. So what happens to the nominations? The
operative fact doctrine was applied so that the declaration does not affect the
prior nominations.
Fundamental powers of the State
Inherent powers
- Police power, power of eminent domain, power of taxation
- Considered inherent because even without Constitutional conferment it
is understood that the State can exercise those powers; because without those
powers the State cannot exist
- Methods by which State interferes with or limits the rights of individuals
Police power
The most pervasive and comprehensive
The right limited or regulated is the right to liberty and property
The limitation or regulation may only be on the use of the property for
the purpose of promoting the general welfare. It is not necessary that there is
taking of the property.
-

Eminent domain

- Taking of private property for public use after payment of just


compensation
- What is regulated is the ownership of property. The moment the property
is expropriated then you cease to be the owner therof.
Taxation

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- Raising of revenues for government use


- What is being regulated is the use of the fruits of the property, not the
ownership unless taxes have not been paid where the property may be sold in
public auction to pay for the tax deficiency.

Authority

Compensation

Police Power
Eminent Domain
Taxation
Exercised
byExercised
byExercised
by
Congress in general,Congress
andCongress in general,
being the law-makingcorporations engagedbeing the law-making
body.
There
arein the operation ofbody.
There
are
exceptions
thoughpublic utilities.
exceptions
though
under valid delegation
under valid delegation
by Congress.
by Congress, e.g. the
determination of tariff
rates being delegated
to the President.
No
monetaryThere is monetaryThe compensation is
compensation.
Thecompensation, whichin terms of services
compensation is theis just compensation. and infrastructures,
altruistic feeling that
not monetary.
the welfare of the
people is promoted.

Police power
- Legal bases:
(1) Salus populi est suprema lex (the welfare of the people is the supreme
law)
(2) (So, use what is yours in such a way that you will not harm what is
not yours or others)
- Exercised by Congress, except under permissible delegation of legislative
powers

DISCUSSION ON THE INHERENT POWERS OF THE STATE


POLICE POWER
Justifications for police power:
1. The welfare of the people is the supreme law.
-

If there is a conflict between public welfare and individual rights, public welfare
prevails.
Public welfare may take many forms such as public order, public policy and public
health, basically anything that pertains to the public. The purpose of which is to
promote the welfare of the people.
It is the most pervasive of all the powers of the state since laws govern us from the
moment of birth til death.

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2. A person must make sure that he will not use what is his to harm the rights of
others.
-

Your right stops the moment the right of another begins.

Who exercises the power: Congress except under permissible delegation of powers
to:
-

The President exercising emergency powers whenever there is war or national


emergency under Sec. 23, Art. 6 of the Constitution. The power is exercised until
withdrawn by Congress but if not, it will last only until the next adjournment of
session of Congress. (Read the case of Drilon vs. Exec. Secretary)
Who declares a state of national emergency:

While we have the case of Lacson stating that the president has the power to declare a
state of rebellion prior to the declaration of Martial Law or suspension of the privilege
of the writ of Habeas Corpus, the president is also in a better position to declare a
state of emergency considering that the president is the Chief Executive and is the
one administering the laws. The president is also the Commander-in-Chief of the AFP
whose concern is National Security. (Drilon case)
However, the president cannot exercise emergency powers upon such declaration.
Since the power can only be exercised upon delegation by Congress so there has to be
a legislative enactment. (Sec. 23)
The exercise of the legislative power is limited and it must be used only to carry out
the legislative intent and this must be found in the law delegating the power. It is also
for a limited period of time. It can be withdrawn earlier, not by a statute but by a
resolution. Because a statute can be vetoed by the president while a resolution does
not require the president's signature.
- Administrative Bodies through the concept of subordinate
legislation. This is limited only to rule-making in order to execute a law.
Administrative bodies are expert in their field so they are in a better position to
implement the law to promote the general welfare
They define the parameters within which to implement the law or supplement when
the law is lacking on details.
However, they can only implement the law when there is complete delegation there is
therefore no discretion left to the admin bodies to determine what the law is all they
have to do is implement it. To determine complete delegation you have to use the
following:
1. Completeness Test (Santiago vs. Ramos)
2. Sufficiency of Standard Test.
Disini Case

There was a creation of a committee that would provide guidelines for the
implementation of the Anti-Cybercrime Law. The Issue here is the constitutionality of
the creation of the committee alleging that there is a violation of non-delegation of
legislative powers.
Supreme Court: there was no violation since the law itself is complete on the functions

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and duties of the committee.


The case of Department of Energy regarding the EPIRA Law
Supreme Court: the law is complete so there was no violation of the nondelegation of legislative powers. The following test should be utilized to
determine if there was complete delegation of legislative powers:
1. The first test is that the law must be complete in all its terms and conditions such
that it reaches the delegate and the only thing he has to do is enforce it.
2. The second test is that there has to be adequate guidelines on limitations of the
exercise of the powers and prevent the delegation from running riot. The EPIRA is
sufficient in all its essential terms and standards.

On administrative bodies exercising police powers, it has to be with the


approval or imprimatur of the head of the administrative office.
Echegaray vs. Sec of Justice
Considering that the Manual for the execution of the death penalty through
lethal injection, which was prepared by the Director or the Bureau of
Corrections (component of DOJ), did not have the imprimatur of the DOJ
Secretary, it was invalidated.
Delegation of police power to LGU
- Basis is Sec. 16 of RA 7160 on the general welfare clause
- LGUs are autonomous regions, provinces, cities, municipalities and
barangays. MMDA is not included because it is only an administrative
coordinating body on the delivery of basic services, not a political subdivision.
Limitations:
Not inherent, merely delegated. Thus, cannot rise above the source of the power.
Hence, cannot pass local legislation contrary to or amend existing statutes.
- If allowed by law, cannot prohibit. May only regulate.
Since lotto is allowed by the PCSO charter, the LGUs cannot pass
an ordinance prohibiting suertres.
- If prohibited by law, cannot allow.
Since prostitution is prohibited by law, the LGUs cannot allow the
establishment of a red district.
Delegation of police power to the people, in general
- Why is this delegated to the people when it comes from the people in the
first place? It is because Sec. 32 Art. 6 granting that power to the people and
the reservation of the exercise of the power under Sec. 1 Art. 6 is not selfexecuting. That is why the Constitution mandates the Congress to pass a law
providing for a mechanism by which people can exercise legislative powers, and
that is why RA 6735 on initiative and referendum was passed by Congress.
2 ways by which people can make laws:
(1) Through the exercise of initiative and referendum directly propose
amendments to the Constituion

13

(2) Wait for the proposal from local legislative bodies and approve or
reject the proposal
Requisites for valid exercise of police power
(1) Lawful subject must be for the promotion of the general welfare
(2) Lawful means must be reasonably necessary to achieve the purpose of the law
and not oppressive upon the rights of individuals
Police power vs. eminent domain: on just compensation
The rule is that, if the property is noxious, e.g. drugs, it is an exercise of
police power thus there is no monetary compensation. If the property is not
noxious, e.g. billboards, it is an exercise of the power of eminent domain and
thus monetary compensation is needed.
-

When portions of private cemeteries are required by the State to be

allotted to pauper litigants, this is an exercise of the police power. It is for the
promotion of the general welfare as improper disposal of the bodies will affect
public health, public safety, etc. Being an exercise of police power, no just
compensation, i.e. monetary compensation, is required. It is enough that there
is an altruistic feeling due to the promotion of public welfare.
-

In a case decided by the Supreme Court, billboards were being removed

for the purpose of the beautification project of the city. It was held that while it
is for the welfare of the people, because the property taken is not harmful or
noxious to public welfare and in fact it was used by the public, there has to be
payment of just compensation. This is not an exercise of police power but of
eminent domain; or it could be police power but implemented by eminent
domain.
-

Other examples when properties are not noxious: state universities

required to grant scholarships to poor, deserving students, Senior Citizens


discount. These were done in the exercise of police power. But since the
properties taken here are not noxious, the implementation is through eminent
domain, hence there should be just compensation. In the case of the Senior
Citizens discount, the just compensation is the tax credit which can be used by
the Company granting the discount to offset its tax liabilities.
POWER OF EMINENT
EXPROPRIATION

DOMAIN,

ALSO

KNOWN

AS

THE

POWER

OF

It is the inherent power of the State to condemn private property to public use upon
payment of just compensation.
Requisites:
1. There is taking in the constitutional sense.
2. The property involved is a private property.
3. The private property is intended for public use.
4. There is just compensation.

14

5. There is observance of due process.


Requisites discussed one by one:
A. There is taking in the constitutional sense.
-

May include trespass without actual eviction of the owner, material impairment
of the value of the property or prevention of the ordinary uses for which the
property was intended.
When is taking compensable? Answer: NAPOCOR Case
NAPOCOR has a dam. Every time it rains, it overflows to the property of X
which is planted with potatoes killing all said plants. Is there taking that would
entitle X to just compensation? X was not evicted but he was deprived of the
beneficial use of his property and to the purpose from which the land is
intended to be used. In that case, there is taking which is compensable.
Case: There is a poultry owner who lives near the airport. Every time the
airplane passes through the property, all the chickens die. Held: There was
taking because although the owner was not evicted, he was deprived of the
beneficial use of his property.
Case: NAPOCOR put up transmission lines and a warning was placed stating:
Beware, do not enter within 200 meters. If one lives adjacent to the said
property which is just within 50 meters from the transmission lines, he will not
enter his property for fear of being electrocuted or otherwise for fear of dying
because of radiation. Held: There is taking.

Requisites of Taking of Property in the Constitutional Sense: (Republic


vsCastelvi)
1. The expropriator must enter a private property
2. Entry must be for more than a momentary period
3. Entry must be under warrant or color of authority
4. Property must be devoted to public use or otherwise informally appropriated or
injuriously affected
5. Utilization of the property must be in such a way as to oust the owner and
deprive him of beneficial enjoyment of the property.
-

Republic vsCastelvi: The government entered into a contract of lease with


Castelvi. Upon the expiration of the contract, the heirs of Castelvi did not want
the renewal of the said contract. The government then filed a case for
expropriation.
Issue: When to reckon the payment of just compensation.
Held: The payment of just compensation must be reckoned from the time of
taking. It cannot be reckoned from the time the lease contract was entered into
because one of the requisites for taking that it be for more than a momentary
period is not present; precisely because the lease is only temporary. The owner
was not also deprived of the beneficial use of his property during the lease
because he was receiving rentals. These two elements were lacking in the lease
contract. Therefore, the taking should be reckoned only at the time that the
expropriation case was filed because only then did all the requisites arise. More
particularly, only then was the entry for more than a momentary period, and
the owner deprived of the beneficial use of his property.

15

B. The property involved is a private property.


-

The property is owned by a private individual or a private entity.


There are properties owned by the government in its proprietary or private
capacity, not in its sovereign capacity. These are called private properties owned
by the government, more particularly of municipal corporations. Specifically, we
describe them as patrimonial properties. When there is taking of the
patrimonial property, it is compensable.
Dominium vs. Imperium: Dominium refers to the capacity to own or acquire
property, including lands held by the State in its proprietary capacity, while
Imperium is the authority possessed by the State embraced in the concept of
Sovereignty.
Any private property may be taken including services as long as it may be
subject to appropriation (may be within the commerce of man).Services here
does not refer to services of man because that is tantamount to involuntary
servitude. What is meant is this: services of private companies engaged in the
delivery of public utility services. A property may be tangible or intangible, and
services of public utilities are intangible that may be subject to expropriation.
PLDT Case: The government wanted to put up a competition in the field of
telecommunications. It asked PLDT to give to the government some telephone
lines so that the government can enter into some telecommunications business.
PLDT refused prompting the government to file an expropriation case against it.
PLDT objected alleging that the government cannot expropriate its telephone
lines.
Held: Services are properties, however intangible. Hence, it can be a subject of
expropriation for as long as it is for public use upon payment of just
compensation.

- Property that cannot be a subject of expropriation: money and choses in action


Emergency powers of the president; Declaration of state of war
On emergency powers of the president, it was asked in the bar, the limitations
are also prescribed by that provision of law. The important point to remember is the
declaration of a state of national emergency as a basis for the grant of emergency
powers to the president. It can only be granted to the president in cases of war and
national emergency. It is already clear that in so far as the declaration of the existence
a state of war, only congress can determine that by 2/3 vote.
But on the matter of the existence of a national emergency, the law is not clear
on that. However, it was clarified by the SC that the chief executive and the
commander in chief of the AFP is definitely in better position to determine the state of
the nation, the national security or peace and order and therefore the president may
have the power also to determine the existence of a state of national emergency.
Nonetheless, that will not justify the presidents exercise of emergency powers without
express delegation from Congress. In other words, therefore, the power is not inherent
is so far as the President is concerned, its always a must that there must be a
legislative delegation. There has to be a statute in order for the president to exercise
legislative power under the limitation prescribed by Section 23, Art VI.
Subordinate Legislation; Completeness Test; Sufficiency of Standard Test
As regards to the exercise of the power by the administrative bodies, this is
justified under subordinate legislation. Either to provide details in so far as laws

16

already passed by Congress in order to effectively implement them or to provide for


limitations or parameters within which the law can be enforced. The important, take
note of the test that it has to be complete before it is delegated to the administrative
body, that nothing is left to the discretion of the administrative body to determine what
the law is but simply to implement it by promulgating the rules and regulation having
the force and effect of law.
Another limitation is on the sufficiency of standards. So the standard has to be
sufficient so that the administrative bodies can be guided accordingly. Now take note
of some of the cases. That case of Imbong v. Ochoa, regarding on guidelines given to
the matter of determining contraceptives. And that of the case of Disini, with respect
to that committee given the power to promulgate rules and regulation in order to
define the parameters, in order to implement the provisions of the Anti-cybercrime law.
The SC was saying that there was no violation of delegation of the power because there
was a standard that wa sufficient, second, the law is complete in itself, what the
committee will do is simply to implement the law.
Delegated power to LGUs
Also, we discussed about the power being delegated to local government. The
only thing that you should remember is the case of Cruz v Paras, which is a
landmark case that local government units in as much as the power is not inherent
can pass only ordinances that are not contrary to the existing laws. And lastly, cannot
pass a law. Under Sec. 19, LGC, in the guise of promoting the general welfare by
prohibiting an activity that is allowed by existing laws, they may only regulate. Thats
the thing that you should always remember. That it is territorial and should not be
oppressive.
How people can pass laws; directly or indirectly; initiative; referendum
And then of course, with regards to the people. You have R.A. 6735 passed by
Congress mandating in providing for procedure on how the people can pass laws,
either directly or indirectly.
Directly. Through initiative. And the requirement is it must be signed and be initiated
by 10% of the registered voters, of which each legislative district is represented by 3%
of its registered voters.
Indirectly, it is through referendum. So in a referendum it will be the local legislative
body or congress to propose the law and for the people to either accept it or reject it.
Unfortunately, however, the case of Santiago v Comelec, was saying that RA6735, in
so far as initiative is concerned, amendments to the constitution, it is not complete, it
is not sufficient. [See, however, page 16 of Nachuras outline reviewer 2015
edition, par.1] So as it is now, should there be any charter change by the peoples
initiative, that has to be clarified how it should be done because apparently RA 6735
has not sufficiently provided for the provisions relating on the procedures or the
limitations relating to that.
Test to determine whether there has been a valid exercise of police power; Lawful
Subject Matter; Lawful Means
Subject matter must be lawful and the means in achieving the purpose must
likewise be lawful or legal. Meaning it must not be oppressive and reasonably
necessary in order to accomplish the purpose of the law. Any challenge to the
constitutionality of the exercise of the power, the law passed in the exercise of police

17

power, it can be done either facial or as applied. You know already the difference. On
other words, even before its implementation, on the face of the law it is contrary to the
constitution, it can be challenged as to its constitutionality.
Two grounds that you may invoke in order to challenge the constitutionality of the law
on its face: 1. Void for being vague and the Overbreadth doctrine. The reason why the
law can be challenge on its face or just on the face of the tenor of the law, is that
before it is applied or anyone is affected, or before anyone experience any damage or
suffering as a consequence of the enactment of the law, because of due process. It is a
violation of due process since there is no clear notice to the person either because it is
vague or overbreadth. This is however applicable to laws relating to violations or
intrusion to your freedom of expression, on freedom of speech. This does not apply to
penal laws. Plunder for example, when this was invoked by Estrada for being vague, he
questioned the constitutionality of the plunder law.
Power of eminent domain
Another fundamental power of the state that is inherent in the state is the
eminent domain. This is important. Always a source of bar exam. Process of
implementing eminent domain is through expropriation. Power of eminent domain is a
limitation of your ownership of private property based on the Regalian Doctrine.
Regalian Doctrine basically, all lands and mineral resources does actually belong to
the state and so you have no reason to refuse if the state wants to have the land back
or any other property for public use.
Remember, for as long as this power is exercise by the national government, its
necessity is, the use of the power of the taking, is beyond judicial inquiry, such would
be a political question. Its not justiciable, its a matter of policy, so what remains as
regards to issue to the courts is to the matter of just compensation. But if the power is
exercised by a delegate, then that would be a justiciable question. The matter of
necessity of the taking and he payment of just compensation. Another point that you
must take note, is if the acquisition of the property is through simple fee, this is like a
sale absolute sale, example, it started with an offer to buy the property and the owner
agreed to it initially and later changed his mind to sell the property to the government,
can the government now exercise its power of eminent domain? The answer is no!
what should be filed is an ordinary civil action foe specific performance of obligation
rather than eminent domain. In eminent domain, it can only be exercised by the
government when there is outright refusal. There has been an offer and then it was
refused be the property owner, then the government has noother choice but to force
the owner to sell the property to government. This is basically confiscating the
property whether or not he owner agrees to the taking of his property.
Now the requisites of the exercise of the power, we said,
1. there has to be a taking in the constitutional sense. Example that we gave
was the Castelvi case.
2. It involves private property. Anything that is the subject of appropriation,
within the commerce of man, except money and choses in action can be the
subject of expropriation, including property of government that is private in
nature or patrimonial or owned by government in its proprietary capacity,
especially by municipal corporations. Should there be taking of these
properties, it is compensable.
Now, how about properties already devoted to public use, can that be the
subject of expropriation? Example, a property owned by a private individual
already devoted to a public cemetery. Can that be taken so that there will be a
diversion road, get a portion of it? Can that be done? If it were the national
government, yes, because the power is plenary. But if it were a delegate, such as

18

a local government, sec 19 of LGC would not be sufficient. It would need a


special law specifically authorizing the delegate to expropriate the property that
has already been to a public use to another public use. In this case for an
access road.
3. Public Use. The concept of public use should there be any taking of the
property, it must be for the use of the public. Example that taking of a land for
the use of public road to be used by the public. What about the instance were a
land was taken for the use as a golf course for tourism purposes? Or what
about a land taken to be used for the relocation site of about 50 families of
squatters? Would that be considered as public use? Supreme court said that it
is considered for public use even if it may not directly benefit or redound to the
benefit of the public as long as it indirectly redounds to the majority or to a
greater number of people in the community. Read the case of the Small land
owners association v the Dept of Agrarian Reforms and the case of the
Heirs of Ardona v Reyes and the case of Manusca v CA, remember when a
land was expropriated by government to put a landmark that this is the place of
Felix Manalo, founder of the Iglesia ni Cristo and directly benefited the
members of the INC. But come to think of it, he is the only Filipino who has
established a church that has become so powerful. We should be proud of him.
Part of our history. Historical, cultural. And the government has to promote the
Philippines history and culture. If the church benefited from it, it is merely
incidental because primarily, it redounds to the benefit of the community, of the
whole country. The intention was not to benefit the members of the INC only.
You must also remember the recent case decided by SC following this recovery
of property that had previously been expropriated by government for specific
purposes however, later that purpose has been abandoned.
(17:01-34:00)
Recovery of property that had previously been expropriated by government for
specific purposes however, later that purpose has been abandoned.
And so the use for which it was intended was no longer being followed by the
government. The question now is whether or not the original owners can recover this
property like for example the IT park that used to be.. that was expropriated to be
used as an airport.. and so in other words the use of the property had been
abandoned. So the question now is can the owners, especially those who have not yet
been paid, reacquire or recover the property?
So a more recent decision is the Ouano case. Its a cebu case. In this case, SC
here said that if the genuine public necessity the very reason or condition if it were
allowing the first instance the expropriation of a private land ceases or disappears
such as in this case as it was no longer used as an airport then there is no more
cogent point for the governments retention of the expropriated land. The same legal
question should hold if the government devotes the public property to another use
very much different or deviates from the public purpose to benefit another private
person. It has been said that the direct use by the state of its power to oblige
landowners to renounce their productive possession to another citizen who will use it
predominantly for that citizens own private gain is offensive to our laws. In other
words, therefore it behooves the condemner to return said property to its private owner
if the latter so desires. The government cannot possibly keep the property expropriated
in any manner it pleases and in the process dishonors the judgment of expropriation.

19

This is not in keeping with the idea of fair play. In other words, the owner can recover
the property.
Transfer to another person once property is acquired through expropriation
In the case of Asia Emerging Dragon Corporation vs DOTC, can it be
transferred to another person once it is acquired through expropriation? Can the
government transfer it to another private individual or sell it? This presupposes that
there was no specific condition before the taking. It is in simple fee. SO the difference
here is the condition is not followed or disappears then the owner will have the right to
recover. But can it be transferred? The SC said the state through expropriation
proceedings may take private property even if admitted it will transfer this property
again to another private party as long as there is public purpose to the taking. So
what matters is the purpose at the time of taking whether it was for a public purpose
or public use.
Public Use; meaning
By the way, the meaning now of public use is public purpose, public welfare,
public convenience. Do you understand? Its not just simply to be used by the public.
So take note of the new meaning of public use. So it says here that public use in the
eminent domain concept has now acquired expansive meaning to include any use that
is of usefulness, utility or advantage or what is productive of general benefit of the
public. That is now the new meaning of public use.
When a property is devoted to public use can it be taken for another public use?
It depends on who is the expropriator. So if was the national government, yes. But if it
were a delegate such as LGU or th president or could be the private corporation
operating a public utility or for public interest, then in which case they need a special
grant. So they have to seek another special law from Congress specifically authorizing
them to take that property already devoted for public use for another public use.
Just Compensation
The most important issue relating to ED which is the favorite in the bar in Just
compensation. What is Just compensation? It is the full and fair equivalent price or
cost or value of the property being taken. Who determines Just compensation? It is a
judicial function that is already settled. In the case of __ vs dulay. What about these
laws like Rule 67, R.A. 8975, 6657? SC was saying that while it is a judicial function,
the discretion given to the courts in determining just compensation is not absolute.
They are subject to guidelines provided by law. And insofar in Agrarian cases, the
courts are mandated nonetheless to follow the guidelines in determining the
determination of just compensation.
Let us clarify this guys. Basically just compensation is equal to FMV +
consequential damages, if there is any, from which the consequential benefit will be
deducted, if there is any. So what is FMV? FMV is equal to where there is negotiation
between the buyer and the seller where the buyer wants to buy the property is not
compelled to buy it or the seller while he is willing to sell it is not compelled to sell it.
Because if the buyer is in dire need of the property, then he will go to whatever extent
to acquire the property. That is not FMV. Or if the seller is in dire need of money, then
he will sell his property at any price even if practically giving it up as long as he has
the money. That would not be considered as the FMV. Now added to the FMV is the

20

consequential damage. So as a consequence of taking the property, the owner suffers


damages, that will be added to the FMV. And if there are consequential benefit, it
would be deducted from the consequential damage. But if the consequential benefit is
equal to or more than the consequential damage, just simply ignore it. Just add the
consequential damage to the FMV. That is the ideal way of computing mathematically
but in reality this is not the case. Its rather difficult especially in arriving at the fair
market value. Because it would include sentimental value which can be more than the
value of the property?
How court determines just compensation; Rule 67 ROC
So how does the court arrive at the determination of just compensation?
Generally, they follow the rules of procedure under Rule 67 of the Rules of court. And
under the rules, there are 2 stages. There is the first stage of the determination of
whether the taking is for public use. And then if it is determined that there is public
use, one may apply for the writ of possession. Who will apply for this writ? The
expropriator. The court then has to require the expropriator, the petitioner, after
determining that there is public use, the deposit of the initial or provisional Just
compensation. Now, how does the court determine provisional just compensation?
Take note here, the court does not have any discretion. It is ministerial and the just
compensation of the first stage is determined by law. So under rules of court rule 67, it
is based on the assessed value of the property. It would be be sufficient to simply
deposit 15% of the assessed value of the poetry for taxation purpses. The basis is the
tax declaration. And in order for the writ of possession to be issued, you should
deposit 15%. Now the court has no discretion. The moment it is established that it is
for public use and secondly there was the deposit of the requisite just compensation,
the court has no choice but to issue the writ of possession.
RA 8974
And then you ask the question, what is RA 8974? This is when expropriation
the purpose is to implement national infrastructure. There is a different amount of
deposit. What are national infrastructures? When you construct a national road or a
national bridge over no water or transmission lines. They are considered as national
infrastructures. You should not delay that. And in fairness to the owner of the land or
the property, the requirement of deposit is not based on assessed value. It is not based
on zonal tax BIR - BIR zonal valuation plus improvements introduced to the property.
And it is not just 15% requirement. It is 100%. Practically, you have to fully pay the
value of the property before the writ of possession is issued. See the difference under
Rule 67 and RA 8974. You read the case of Republic vs __ and the recent decision of
that is republic vs holy trinity realty corporation. SC was saying that there are at least
2 crucial differences between the procedure between rule 67 and ra 8974. Under the
statute, the government is required to make immediate payment upon the filing of
complaint before he is entitled to a writ of possession whereas rule 67 is required only
to make an initial deposit with an authorized government depositary. And Rule 67
prescribes that the initial deposit is equivalent to the assessed value of the property
for the purpose of taxation unlike RA 8974 which provides as the relevant standard of
just compensation is the market value of the property or the current relevant zonal
value of the BIR, whichever is higher.
34:01-51:00
Rule 67 prescribes that the initial deposit be equivalent to the assessed value of
the property for the purposes of taxation unlike RA 8974 which provides us the

21

standard for the initial compensation the market value of the property as stated in the
tax declaration or the current relevant zonal valuation of the BIR, whichever is higher,
the value of the improvements and/or structures using the replacement cost method.
In so far as LGUs are concerned, assessed value 10% deposit. Once it is done,
order of possession is issued. What would the consequence? The expropriator can now
enter the land and the government now shall proceed in implementing whatever they
intend for the land it is expropriating.
Now after the writ of possession is issued, is it now the end of the case? The
answer is NO.
There is the second stage, which is now the final determination of just
compensation. The court now has discretion to determine final just compensation.
How does the court do that. The court will now appoint commissioners which is
mandatory to satisfy the requirements of due process. The court cannot just conduct
hearing cases involving expropriation because there are so many of them, so the court
appoints a Board of Commissioners to receive the evidence of the parties as regards to
the value of the property. After that, the Board of Commissioners will issue a
recommendation to the court.
Is the court bound by the recommendation? The answer is NO because final
determination of just compensation is discretionary to the court but usually the court
adopts the recommendation of the Board.
There is an instance when the Board of Commissioners need not be appointed
especially when the parties agree how much should be the just compensation.
SO to determine compensation, you follow either RA 8974 or RA 6657 for
Agrarian Reform still involving the market value of the property.
IMPOSITION OF INTEREST
Now lets go on the matter on imposition of interest.
How much now is the prevailing interest rate? So what is now the decision of
the Supreme COurt? In the case of Apo Fruits Corporation v. Land Bank of the
Philippines, Land Bank of the Philippines v. Heirs of Alsua. The Supreme Court
in the case of Apo Fruits Corp. in the process determined that the legal interest rate
should be 12% recognizing that just compensation is effectively a forbearance in the
part of government just like any ordinary civil obligations reckoned from the time of
taking. Had the finality of the judgment been the critical factor, then the 12% interest
should have been imposed from the time the RTC decision fixing just compensation
became final. Instead, the 12% interest was imposed from the time that the Republic
commenced condemnation proceedings and took the property.
In other words, if there has been no payment of just compensation from the
time of the filing of the complaint, then the 12% interest, should there be delay should
be reckoned from the time of filing but if there had been a deposit, although there is
delay in the final and full payment of just compensation, then it should be reckoned
from the finality of the judgment of the court. SO if there is no delay, then there is no
basis of the imposition of the 12%.
In the case of Land Bank of the Philippines v. Heirs of Alsua, the Court has
allowed the grant of legal interest in expropriation cases where there is delay in the
payment since the just compensation due to the landowners was deemed to be an
effective forbearance on the part of the State. Legal interest shall be pegged at the rate
of 12% interest p.a. from the time of taking. It is no longer 6%. ( But only until June 30,
2013, thereafter it should be 6%, per BSP Circular, side comments ni xa kay naa ni.ask)
Interest In The Nature Of Damages
Republic v. Soriano. As often ruled by this Court, the award of interest is
imposed in the nature of damages for delay in payment which, in effect, makes the
obligation on the part of the government one of forbearance to ensure prompt payment
of the value of the land and limit the opportunity loss of the owner. However, when

22

there is no delay in the payment of just compensation, SC has not hesitated in deleting
the imposition of interest thereon for the same is justified only in cases where delay
has been sufficiently established.
Who pays for the real estate taxes when there is no transfer of title? Title is only
transferred when there is full payment of just compensation, so for the meantime, it is
still the owner of the property who pays for the real estate taxes subject to
reimbursement. However, you have to allege that in your answer when you are sued for
expropriation or answer of payment of just compensation, otherwise, the failure to
allege that in your pleading shall be considered as a waiver to claim reimbursement for
payment of real estate taxes.
Recovery of Property for nonpayment of Just Compensation
SO when there is no payment of just compensation within 5 years of the finality
of judgement, what would be the remedy? The owner shall have the right to recover the
property in the case of Republic v. Lim, subject to the return of the advance of
deposit of just compensation. Of course, it is not that easy, because you also have to
pay whatever improvements were made on the property.
Can the owner recover the property simply because he was not paid just
compensation? Just take note that as a general rule, simply the fact of nonpayment of
just compensation is not reason for recovery. What he should do is to demand
payment. Sue the government for the payment of just compensation. But if there is
now an allegation of delay, he may now recover it using the principle in Republic v.
Lim when there is delay on the payment more than 5 years from the finality of the
judgment. SO in that case, the owner has the right to recover the property.
Expropriation by LGU
about the delegates? The LGUs for example. You have Section 19 as basis of
the Local Government Code RA 7160 as basis for expropriation and you must take
note of the requirements: Number one, there should be an ordinance authorizing the
local chief executive to initiate the expropriation. But prior to the filing of an
expropriation case to the court, there has to be a valid offer that is definite and....
(51:01 1:08:00)
Prior to filing of expropriation cases in court, there has to be valid offer that is definite
and in money to the owner of the property. The failure to comply with those
requirements will have consequence to the case being filed for purposes of
expropriating the property. It could be a ground for dismissal for no cause of action.
Insofar as to the definition of public use it is public welfare, public purpose, for the
poor and landless. This is very specific insofar as Section 19 is concerned.
How about private corporation performing public utilities like water district such as
MCWD, what is the requirement?
Take note of MCWD vs King & Sons Corp this has already been asked in the bar.
For MCWD, two requirements:
1. The BOD should pass a resolution authorizing the expropriation
2. The exercise of the power of eminent domain is subject to the review by the local
water utilities administration.
Next topic, TAXATION
Rationale:
The legal basis for this is because of the necessity of having improvement (unclear);
The government cannot exist without funding its operation and the only way to get and
compel money from the people is in the exercise of the power of taxation. This is an
enforced contribution by the people for the support of the government. The SC is
saying that as long as the purpose is for raising revenue and they will not allow the
use of this power to destroy anybodys property because why kill the source of the
funding ask the saying goes, Do not kill the duck that lays the golden egg. Precisely

23

why, they should not be put to jail just because of non-payment of taxes supposedly. If
you are put to jail, how can you now pay.
Also, not imposing exorbitant taxes on property such as imposing 80% income tax on
our salary then nobody is going to work anymore. They will just depend with the
government for subsidy.
On the issue of double taxation:
BAR: Is it prohibited?
Answer: The constitution is silent so it is neither prohibited nor allowed. It is not
prohibited because it could be for different reason/purpose although pointing to the
same subject matter. For example, this table could be charged for property tax; it can
also be subjected to income tax; it can also be subjected to donors tax if donated. So
there are several taxes on different purposes on the same object or subject matter but
this is not prohibited. It can only be considered be unconstitutional when it violated
the EQUAL PROTECTION CLAUSE.
On the characteristics of Philippine taxation:
(Ask in the bar many times)
1. Equitable based on ones capacity to pay taxes; lesser income, lesser taxes.
2. Uniform those similarly situated should be uniformly taxed in the same rate.
3. Progressive as your income goes higher, the taxing rate also increases;
This is in compliance with Equal Protection Clause!
What is the policy when there is doubt whether you should be taxed or not?
Resolved against the taxpayer.
What about the grant of tax exemption?
Also it against the taxpayer meaning you pay taxes. The only instances when you are
granted tax exemption is when it falls under constitutional and statutory tax
exemption.
On Tax Exemption provided under the Constitution:
Article VI, Section 28(3) Charitable institutions, churches and parsonages or convents
appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and
improvements, actually, directly, and exclusively used for religious, charitable, or
educational purposes shall be exempt from taxation.
This provision exempts only property tax. But take note on educational institution, be
it non-profit and non-stock educational institution or proprietary, it is subject to such
limitation as may be provided by law. What is exempted are income, revenue, assets,
endowment, donation and whatever as long as it is for educational institution. Take
note of this.
On Tax Exemption provided under Statutes:
It has to be approved by majority of the members of Congress.
On Tax Exemption to National Instrumentalities by LGU:
Take note LGU can levy taxes. The provision of the Constitution relating to that is selfexecuting that would not require legislation. Even national instrumentalities within its
territorial jurisdiction can be taxed by the LGU but in case of doubt, it will be resolved
against the taxing power of the LGU because power is limited.
MCIAA vs City of Lapu-lapu MCIAA was taxed but not MIAA. The difference
between the two because MIAA, the airport property is owned by the republic in its
sovereignty capacity; whereas, MCIAA is a national instrumentality in its proprietary
capacity. But I think theres an MR relating to this that MCIAA as national
instrumentality should be exempt by taxation as well. But there has to be a law and
should clearly say so just like GSIS when before it was subjected to tax. There was
nothing in the charter creating GSIS that exempts it from taxation. However, a
subsequent law is passed exempting GSIS but prior to that the SC sustain the power
of LGU to impose taxes.

24

Difference between Taxes vs License.


Licenses are for regulation but taxes is for revenue-raising.
Lets go now to the topic about
STATE
Elements:
1. People
2. Territory
3. Government
4. Sovereignty
Purpose of the Preamble:
1. Indicates the authorship of the Constitution that is the sovereign Filipino
people
2. The purposes why you are adopting the Constitution as enumerated in the
Preamble.
Its only an introduction. It does not confer any right nor obligation. If it is not
followed, it can not be a basis for judicial action just like Article 2.
On Territory:
Article 1 of the 1987 Constitution. Im sure there will be a question on the matter
especially the ongoing controversy on the West Philippine Sea. Now, if you can
memorize the definition, the better.
ARTICLE I
National Territory
The national territory comprises the Philippine archipelago, with all the islands and
waters embraced therein, and all other territories over which the Philippines has
sovereignty OR jurisdiction, consisting of its terrestrial, fluvial, and aerial domains,
including its territorial sea, the seabed, the subsoil, the insular shelves, and other
submarine areas. The waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of the internal waters
of the Philippines.
Take note of the composition of the Philippine Territory:
1. Philippine Archipelago
2. All other territories, over which the Philippines has sovereignty OR jurisdiction
3. Territorial Seas and submarine areas
4. Internal Waters
As basis in defining what an archipelago is, we are adopting the UNCLOS under Article
46.
"Archipelago" means a group of islands, including parts of islands, interconnecting
waters and other natural features which are so closely interrelated that such islands,
waters and other natural features form an intrinsic geographical, economic and political
entity, or which historically have been regarded as such.
(1:08-1:25)
Article 46, UNCLOS defines archipelago
(b) "archipelago" means a group of islands, including parts of islands,
interconnecting waters and other natural features which are so closely
interrelated that such islands, waters and other natural features form an

25

intrinsic geographical, economic and political entity, or which historically have


been regarded as an archipelago.
An archipelagic state means that a state constituted wholly by 1 or more archipelagos
and may include islands.
Trivia: How many islands are there in the Ph?
Ans: 7, 106 (depends on the low or high tide)
Q: How is the archipelago delineated or defined?
Ans: Take note of the relevant treaties entered into by the US
First, the Treaty of Paris of December 10, 1898.
Then there was the Treaty entered into between Washington and Spain on
November 7, 1930 ceding Cagayan, Sulu and Cebu.
Then there was the Treaty entered into by the British Government and the US,
where the Turtle and the Mangsi Islands January 2, 1930.
Take note because this has been the question by the Chinese government that
we have no right over the Scarborough Shoal. Take note that under the US occupation
we already made claims over the Scarborough Shoal because it is one of those
included in the Treaty of Paris as one of those ceded, consisting of reefs, corals or
rocks. There are only 4 rocks which appears during high tide. The Chinese government
is not interested in the minerals there, its the water. At any rate this is so far as the
archipelago is concerned.
Batanes Island
The only island which was not included is the Batanes island, which is not in the
Treaty of Paris nor any subsequent treaties. But we base our claim through what?
We made a claim, under Public International Law through long possession and
occupation.
Q: Aside from the archipelago what are other parts of the PH national territory?
Ans: You have this other territories over which the PH has jurisdiction or sovereignty.
Sabah Island
In other words, Sabah. Through RA 5446 we made a declaration based on historical
claim that once upon a time it belongs to the Sultan of Sulu.
Sidenote: By the way, how about Republic of Bohol?
The Espaols surrendered because they cannot dominate Bohol because they
are so aggressive. They declared themselves independent of the Spain. Mind
you, they are religious. I just learned in the US that once upon a time that it
was known as the Republic of Bohol, not just a source of joke. It is historically
known as Republic of Bohol but part of the archipelago.
Back to Sabah, it was formerly owned by the Sultan of Sulu, it was given to him
as a gift by the Datu of Borromeo. This was acknowledged by the UK, by the British
Government by paying rentals to the Sultan of Sulu and the heirs subsequently. But
then again it is located nearest to Malaysia. When the Malaysian government was
given independence, it was then surrendered to the Malaysian government, starting
Malaysias claim over the disputed territory.
Q: How do you classify now between our claim and Malaysias sovereign claim over the
island?
Ans: Ours is more proprietary not sovereign rights because we have not established a
government there yet. To consider a territory to be part of another countrys territory,
there has to be establishment of sovereignty or jurisdiction.
Q: What is the difference between jurisdiction from sovereignty?
Ans:

26

Jurisdiction is when you subject one under the control or authority of our
government, implementing laws there by establishing a government.
Sovereignty is not necessary putting a government there. It could be only rights,
because there are 2 ways by which you can acquire a territory: dominium or imperium
or gestionis or imperitium.
In our proprietary capacity acquiring having title over the property of Sabah.
But because of the vehement objection of Malaysia we are still having difficulty in
asserting. In fact when the heirs of the Sultan of Subu tried to take over the land, the
government was even threatening them, the government of Malaysia threatened them
that they will be charged with treason should they pursue their claims over Sabah.
As it is now the position of the government is rather vague on that. If you will be
asked, yes it may still be considered as party of the territory based not on jurisdiction
but based on sovereign rights over the property.
Kalayaan Group of Islands.
First, it was discovered by a Filipino mariner from Bohol, Tomas Cloma. It was
ripened into ownership by actual occupation. In fact he brought his family, neighbors
and countrymen to that place. After they consumed everything, they returned to
Bohol.
Recently, the Kalayaan Group of Islands is now part of the Municipality of
Palawan. Trabaho nila is mostly by military, probably playing basketball, for as long as
there are people occupying it to continue our assertion over the Kalayaan Group of
Islands.
From discovery to occupation, and because this has been disputed by
neighboring countries saying they had been first to discover, we are place in a position
that is not so clear over the Kalayaan Group of Islands. This is part of Spratlys Island,
composed of several islands, we only claim 3 or 4 islands only which we named as
Kalayaan Group of Islands. Other neighboring countries are claiming islands there
including the islands we claim, like Malaysia Vietnam, Thailand, Indonesia, China and
even Japan. So now, we are saying not only was it discovered and occupied by us we
have better claims because it is within the 200 eclusive exonomic zone or if not within
our continental shelf.
Basis of our claim: discovery and occupation, it is within our 200 exclusive
economic zone and continental shelf.
RA No. 9522 and the regime of islands
This Kalayaan Group of Islands and Scarborough Shoal used to be part of the
archipelago. Not anymore, under Republic Act No. 9522, now they are considered as
regime of islands.
They are now excluded from the archipelago. So now when a straight baseline
has been drawn to connect the outermost points of the outermost islands of the
archipelago, they are already excluded. They are now treated as regime of islands, they
have their own territorial seas which is 12 nautical miles. They have their own 200
exclusive economic zone.
Scarborough Shoal
Q: Where is Scarborough Shoal?
Ans: It is located closest to Zambales, the KGI closest to Palawan. Scarborough Shoal
is within 124 nautical miles from the province of Zamables. It is now part of Zambales,
particularly Masindoc.
So location wise, it is nearest to us. But then again take note we have been occupying
the islands since 1936. The Chinese, claiming it that they are theirs since time
immemorial, precisely the sea is called South China Sea that includes all islands
found in the sea. But they have never occupied them. In PIL, one can only acquire a

27

territory by occupying it. The discovery will only give them an inchoate right which can
only ripen into ownership by actual occupation. In our case, we have occupied it for a
number of years since 1936 and there has been no claimants until this Chinese
dispute under the 9 dash lines they are claiming as basis.
Basis of claim: discovery and occupation
In other words there is effective occupation and jurisdiction over the coral reefs. We
have the military occupying the coral reef and it is closest to our territory.
What else? It is within the 200 exclusive economic zone and our continental shelf.
We have better claims.
In so far as the coral reef itself, our basis is PIL. The seawater, the 12 nautical miles,
UNCLOS and the exclusive economic zone.
The Chinese governments position, they say the water is overlapping. If it is on the
basis o the 9 dash line, their drawings show it is nearer to them. The position of
Associate Justice Carpio if you say exclusive economic zone, it must be reckoned from
a territory that is habitable, capable of habitation without intervention, meaning that
even without subsidization, they can live. According to them, it is underwater, how is it
habitable then? It is not capable of human habitation and occupation if you base it on
the 9 dash line. Bisag asa na ilang 9- line nagclaim, apil na gud ang Indonesia. So
what they did, they reclaimed this reef so that it would appear that it is habitable. But
naturally it is not. So as I was saying, the 200 economic zone we have the better claim
because it is a territory that is nearest to Zambales that is habitable.
At any rate this is still under arbitration.
(1:25-1:42)
We have a better claim because it is a coral reef that is nearest to Zambales that is
habitable. That is still under arbitration and were still awaiting, but in most likelihood
we have a favorable judgment.
Are you familiar with Palmas Islands Case? Do you remember?
PALMAS CASE. Who is occupying or controlling this island? Its Netherlands. Who
discovered? its Spain and ceded to US under treaty of Paris. So US claimed Palmas
Islands. And how was it resolved? Thats why were confident that we might be getting
a favorable result in the arbitration. Because of that case. Because even assuming
Scarborough even discovered by Chinese, we are the ones occupying it. So on the basis
of effective occupation and jurisdiction over the territory, we have , even if they were
the ones who first discovered them, but there was no indication that they have
occupied it. So the decision in Palmas Case, the ICJ decided in favor of Netherlands,
so thats what we are invoking in so far as the rocks are concerned.
Another thing is with the sea waters. But again as I was saying, It is within our 200
exclusive zone and the continental shelf and the basis being that kung basehan ang
200 atoa ang habitable. As against the Chinese saying that there is overlapping, of
EEZ, it is not habitable at all until they reclaimed it. Karon ang next issue, because
previous Arroyo Admin, there is negotiation because they are after actually the mineral
resources found within this 200 EEZ reckoned from Scarborough, so they are
suggesting joint venture nalang kuno. TN when we say exclusive meaning to the
exclusion of the rest. IT CANNOT BE SHARED! It does not belong to you but you have
exclusive right to explore, develop and utilize and the COnsti is very clear on that. Now
ingon ang SC thru Assoc Justice Carpio, that is contrary to Consti if we enter into a
joint venture with China. IOW, they are against it. But in this coming admin, there is
possibility that they will enter into a joint venture. Lets just wait and see. But if we are
ask as to the basis of claim, we have to make a distinction between rocks and sea
waters.
Read the case in the Palmas Case in PIL.

28

Suko ang Chinese sa US coz why is the US intervening raising UNCLOS as basis
wherein it has never been a signatory. Unya manghilabot pa. But we are signatory to
the UNCLOS, like China also. Mao na pangutana because China refused to submit to
the jurisdiction of the arbitration panel, saying that they are sovereign state and
therefore unless we give our consent, we cannot be compelled to submit. Are they
correct?
No. This is not the same as ICJ, because in ICJ only when state submit to the
authority of ICJ that they acquire jurisdiction. But in this case, because they signed
the UNCLOS, they have waived that right. They have signified to abide by the rules
and regulation to submit to arbitration in case of conflict. Meaning estopped na sila.
So that is now the status of our claim over the Scarborough.
So Regime of Islands settled that RA 9522 is constituional. Read Case of Magalona vs
Ermita.
STRAIGHT BASELINE METHOD. Seawater inside the archipelagic baseline use the
straight, you dont use normal baseline. Whats the difference between the two?
Staight baseline method is when you draw a straight line connecting the points of the
outermost islands. The waters inside is what we call internal/ archipelagic waters.
And outside the baseline is now the territorial seas and it would be reckoned from the
12 NM normal baseline. From the normal baseline of the outermost island. 12
nautical miles. So that would be considered as your territorial seas. Again that is
subject to PIL relating to innocent passage and the archipelagic ceilings. Insofar as the
govt is concerned, we still have to define what is this archipelagic ceilings to allow
vessels to enter when it is their normal route for them to pass through the seawaters
or navigation in the waters as well as in the air. So there has to be some kind of right.
CONCEPT OF CONTIGUOUS ZONE. To what extent do we have jurisidiction over the
contiguous zone? What is this zone? It refers to submerged continent which may even
go as far as beyond the territorial seas. So submerge siya and you cannot see it when
its high tide because its underwater. We can go as far as beyong the 12 NM of the
territorial seas. So what would then be our claim? Is it still part of the territory?
Answer is NO. Because diba ang territorial seas only 12 NM from normal baseline. But
for purposes of implementing the sanitary laws, custom laws,etc, you then run after
pursue up to 12 more nautical miles from the end of the territorial seas. IOW, 24 nm
from the normal baseline.
Part of the territory only up to 12 nm from the normal baseline. Contiguous zone will
extend up to 12 more nm from the end of territorial seas.
EMBASSIES LOCATED IN THE COUNTRY. Are they part of the territory? The lands.
The fences. Are they part? TN of the case of Raegan vs CIR. Exception to the full and
complete power within its territories is by virtue of consent. The embassy premises of a
foreign power are within the territorial domain of the host state. The embassy
premises is not the territory of the foreign state to which the fences belong. They are
still part of our territory. Only that there is suspension in the exercise of our acts of
sovereignty over the fenses. Because of their immunity and if they considered as an
extension of the country that it represents under the principle of territoriality.
ARTICLE 2. DECLARATION OF STATE POLICIES OF THE STATE.
One thing that we should always remember that, unlike any other provisions of the
Constitution. These are not self-executing. They are mere guidelines for executive or
legislative action. So if there is any doubt as to regards to a law, how it should be
interpreted or construed. Our courts will be guided accordingly. But definitely, you
cannot use this as basis for judicial action or relief. Unless there is a law that
implements it, then you go by questioning the validity of the law. And in
understanding it, Use article 2 as basis.
For example of that is the case of Angara vs WTO. Regarding our membership to the
WTO, where it conspicuated in the treaty that congress is prohibited from passing

29

laws that is in contrary to the WTO. And they are saying that that is contrary to the
provision in the constitution under article 2 pertaining to art 2 relating to having an
independent foreign policy. And that is also a violation of our sovereignty when there is
a specific provision in article 2 relating to that we are a sovereign state. In deciding the
case, the Supreme Court was saying that first of all, you cannot use article 2 as basis
for a judicial action, to question the validity, like in this case the WTO. And second of
all, the SC went on saying that there was no violation of sovereignty here because after
all its not absolute. No one is an island. One cannot live in the world being isolated
from the rest of the members of the international community.
Bottom line is: It is emphasizing that Article 2 is not self-executing.
On Section 2.1. What kind of state we have? It is a republican democratic state. The
power resides in the people and all government authorities emanates from them. In
this section, you have to master the manifestation of republicanism. Like one
separation of powers, non-delegation of powers, bill of rights, on accountability of
public officials, etc, etc.
Non-delegation of powers
The most important principle there is the separation of powers corollary also to the
non-delegation of powers which is imposed by the supreme courts exercise of judicial
review. The recent cases pertaining to that is the DAP case or the case of the PDAF
(Araullo vs Aquino). So what was the issue on separation of powers relating to that
PDAF? That there was an intrusion into the execution of the budget. Who prepares the
budget? It is the president. Who appropriates funds on the basis of the budget? It is
the Congress.
1:42:00
(SUSMARIAJOSEPH)
Who appropriates funds on the basis of the budget? It is Congress. Once a law
is passed appropriating funds for the specific purpose, who is the? It is the president.
Violation of Separation of Powers; PDAF; DAP
In case of PDAF, who appropriate the porkbarrel, it is already earmark for the
projects apparently the practice is, the Budget Secretary will ask the members of
congress what projects they are already reserving their porkbarrel, practically it is for
then to identify and implement , it is considered as violation of separation of powers
and secondly three was an issue on violating the prerogative of the president to veto
because it will no longer pass through president once project is identifies, so in effect
it violates the separation of powers. This practice of PDAF was a violation of the
Constitution. So you go over the case of (?), how the powers are exercised and violation
of separation of powers.
In the case of DAP it is the other way around. There is no appropriation it is the
congress that appropriates. So, specific allocation of public funds, so what happened
next, what president do? What he did was he spend money from his own budget to the
project which are the mention in the General Appropriation Fund, in effect, it was him
that practically appropriate the funds without authority by the law, do you
understand? okay? In the order of things it is for congress to appropriate and
president to disburse based on the appropriation of congress ,in the case if DAP there
is no appropriation of funds but there is no identification of the project, so it the
president who used the funds from the savings to the projects which are not allocated
with funds and the General Appropriation Fund, So it is the President that used the
funds especially from the savings to the projects that are not allocated with funds and
were not identified. In effect the president usurps the power of congress insofar as the
appropriation is concerned. Do you understand? Okay? What else the issue here in
the separation of powers because there are several violations mentioned here and in
relation to the separation of powers it is more on the appropriation matter, any
question so far or clarification relating to that? There was also issue of juggling of

30

funds, cross bordering insofar as the used of the funds from saving which was used to
the other department, ANY PROBLEM, ANY QUESTIONS OR CLARIFICATIONS? DO
WE UNDERSTAND EACH OTHER HERE GUYS on separation of powers?
Checking Power
The basic principle should you remember on the separation of powers even if
you have not read the cases, there is one thing you should TAKE NOTE. It is the power
that is granted in the Constitution in particular branch to assign okay? That power is
exclusive to the department and that cannot include into by the other branches, there
will be violation of separation, if included into, now then, there are powers the
constitution, although assigned in the other branch, the Consti allow checking of the
power, there is now confusion. When it is considered CHECKING, when it is
considered EXCLUSIVE on that branch and therefore should not be included by way of
checking as an exercise on the power, the consti is specific on the checking for
example the matter of making laws FOR EXAMPLE Di ba that power is plenary and it
is assigned to congress, so therefore precisely because the powers assign to congress it
is not for the president what laws to be enacted neither can the president tell the
congress when to make the law because that power is exclusive generally vested on
congress, but the consti provides checking to that power how? Veto power of the
president, even the bill is approved the bill cannot be law unless signed by the
president that precisely the checking to balance the power, the power of the president
is checked by overriding by how many votes? 2/3 this are the provision of the consti, it
is easy to determine then, because if you master the powers of each other and the
process and the to exercise the powers then you cannot immediately conclude that
there is interference of the powers and violating the separation of powers because it is
possible the consti allows it in order to maintain the balance among the branches of
the congress. Okay
On the other hand, [ JUDGE TALKS ABOUT JETLAG ], ..
Sharing of Powers
So going back to the separation of powers, aside from the checking there is a
matter of sharing the power okay for example appointment power, where is this
assigned? Appointment by nature is executive. How this power checked? Through the
commission of appointment. Aside from that guys, do you know that congress makes
its own appointment of its own personnel and staff? It is congress, similarly, the
administrative personnel of judiciary, who makes the appointment? It is not the pres.
It is the Supreme Court. Justices and judges are appointed by the president but the
court administrative staff like research atty. Or clerk of court, they are appointed by
the Judiciary Dept. pursuant to the civil service law. So there is confusion, you might
think that AH! THERE IS USURPATION! of the exercise of powers. You must have
mastery of powers, which powers are shared. Which powers are being checked. And
they may not violation of separation of powers for example the legislative power is
vested in congress but you know for a fact that this power can be delegated to the pres
or even to the Supreme court by congress delegating it, the constitution provides the
president on Section 23 on Emergency power as far as judiciary is concerned.
There is Section 25 on rule making power insofar as governing the pleadings,
practice of law in court, so, there is confusion in Rule 67 this was amended by RA
8974 , there was a question on constitutionality of RA 8974 it amends rule 67 and
who is supposed to amend or modify the practice of law governing the court. Is it not
the Supreme Court. This is the case of De Leon, was there a violation of separation of
powers? SC said that legislative powers is plenary in congress so Congress is not
barred for passing that law any kind of law, even amending the Rules of Court that
power they may also be assigned to the SC. It is a kinda broad and so many cases on
separation of powers. So be guided by the principle prerogative sya by the branch
therefore a political question and beyond the ambit of judicial inquiry/review for as

31

long as it is power expressly granted to it by the consti except when consti allows that
power to be checked, rather checking and balancing of powers and except also the
consti allows that branch to exercise the power that are also exercise by the co-equal
branches of the govt and there is sharing of the powers.
On non-delegation of powers is a corollary as separation of powers, as it was in
separation of powers the moment that power is assigned to that branch, it is supposed
to exercise not to pass it to the other branch. Who delegated that power to the other
branch? So, once it is delegated, it cannot be further delegated. Otherwise there would
be violation of non-delegation of powers.
So for example in the case of abakada guro et al vs ramos, remember that
case guys of VAT, increase from 10% to 12% if you recall it levy taxes, so it is congress,
why pres increase? They said that this is not a tariff rate where there is delegation
under Section 28 Art. VI but that is not the tariff rate, di ba? SC said that there is no
conditions passed by congress and this condition is determined and whom is the best
position to ascertain whether to increase ba rate whatever it is, it is for the department
of finance, NEDA and these are all under executive branch, once the elements to
increase the VAT what will be the president do? Implement it, in effect the president is
merely ascertaining the fact the requisites to increase the VAT and implement the law
there is no usurpation of legislature here. So, no violation of non-delegation of powers
in that case.
On the exercise of sovereignty guys, directly or indirectly, the question is when is
sovereignty directly exercise by the people? --------- end

Republic Act No. 9522 relating to the exclusion of the Kalayaan Group of Islands in
the Scarborough Shoal from the archipelago. They are now considered as regime of
islands and the justification for that exclusion, take note this was discussed in the
case of Magallona vs. Ermita. So just go over with that case.
Theres a justification that that law is constitutional and does not violate the
Treaty of Paris that originally delineates or defines the boundaries of the
archipelago as to the composition of the Philippine National Territory. On our
claims over other territories, we also have explained these guys. We have
already made a formal claim over Sabah under the Republic Act 5446 and our
claim over the Kalayaan Group of Islands. Insofar as Sabah is concern, that is
based on history guys. Insofar as Kalayaan Gorup of Islands, it was initially
based on discovery. Thereafter, there was occupation over this group of islands.
It is now part of Palawan if you can recall that guyth. And finally, this was
further justified by the fact that the Kalayaan Group of Islands is found within
the 200 exclusive economic zone. They are found at the southernmost tip of
Mindanao or within the continental shelf of our territory.
With respect to the Scarborough Shoal, the same thing, it was based on
discovery and later we have occupied it since 1936. While China may have
historic right over it based on discovery. But such would not be sufficient to
acquire property under public international law or territory. Because under
public international law, there has to be effective occupation and jurisdiction
which only the Philippines has complied with. And therefore in terms of
preference or priority in the claim over it, as we have already advanced in our
argument for the arbitration, we are in a better position to claim the
Scarborough Shoal as a territory. So per se, as far as the coral reefs are

32

concern, it was based on public international law on the mode of acquiring


territories, so you have based on discovery and occupation. Effective occupation
and jurisdiction. It is now part of the Municipality of Masinloc part of
Zamabales within 124 nautical miles from Zambales.
In other words, still within the 200 exclusive economic zone insofar as the seawaters is
concerned both territorial and outside or beyond the 12 nautical miles but still within
the 200 exclusive economic zone. Do you understand? In the claim insofar as the
exclusive economic zone, this has been explained by Justice Carpio by saying that the
basis of the 200 exclusive economic zone should be an island that is habitable,
capable of human habitation without intervention from outside. Do you understand?
So as between the Chineses nine-dash line as compared to our claims over it on the
basis of the Scarborough Shoal, we are in a better position in terms of habitation. Do
you understand? So just take note of that guyth as basis of our claim over this regime
of islands. Any questions so far or clarifications?
As one of the compositions of the archipelago is the internal waters or what we call
archipelagic waters. These are the waters found inside the straight line after drawing
the straight line connecting the outermost points of the outermost islands. The waters
inside are considered as internal waters. So regardless of breadth and dimension, they
form part of the internal waters. They are treated like fluvial domain. Do you
understand? They are likened to rivers, lakes or swamps. So regardless whether its so
wide or so thick, they are considered as part of the Philippine Territory.
BAR:
Cite a constitutional basis of the adoption of the archipelagic doctrine.
1. So number one, you have the first paragraph there guyth. Philippine territory
comprises of the Philippine archipelago with all the islands and waters
embraced therein. Thats the first sentence.
2. Second, the waters around, between, connecting the islands regardless of
breadth and dimension form part of the internal waters of the Philippine
territory. So you take note of that. So then thats the question on the formation
of Bangsamoro as a juridical entity. This is one of your basis for saying that its
contrary to the constitution because the idea of Bangsamoro Juridical Entity is
to have a territory independent of the archipelago. They wanted an entity or
practically a sub-state outside of the Philippine National Territory. There can
only be one Republic of the Philippines comprising of what was defined under
Article I.
BAR: whether it is possible for the Congress to pass a law creating three states
consisting of Luzon, Visayas and Mindanao islands.
Answer: That would be unconstitutional based on the definition of national territory
because theres only one and they comprise of the Philippine archipelago or one of the
parts or portions of the Philippine National Territory. Just take note that we are a
signatory to the UNCLOS. US is not. China is a signatory. So if incase there will be
conflict or disputes over the sea waters, they will be governed by the UNCLOS and
should be subjected to arbitration by the ITCLOS. They are bound by that and they
cannot say that they are a sovereign state and therefore cannot be subjected to the
authority of the ITCLOS without their consent because by signing it, they have
conceded, surrendered their sovereignty. Do you understand? In other words, they will

33

be estopped in asserting their sovereignty once they have signed it. They have
practically submitted to the idea to the concept that they would comply to the terms or
the stipulations as stated in the UNCLOS.
But in terms of dispute of territory, who has jurisdiction? Not ITCLOS. Not
UNCLOS. It will be the ICJ. And if it is to be submitted to the ICJ, then that would
require consent of both sovereign states. Thats the difference. We go directly to Article
II. I have to discuss other elements of the state which we might not be able to discuss
vis--vis the provisions of the constitution because these are general principles such
as the concept of sovereignty as an element of the state. So what is this sovereignty? It
is the very essence of the state. These are total influences that makes the state or
empowers the state to govern.
What are the two aspects of sovereignty? We have internal and external.
What is internal?
Manifested by enactment of laws to be followed by the governed.
What is external? That is the enjoyment of independence or the freedom from external
control.
Now where is this power vested? As far as our constitution is concerned, sovereignty
resides in the people where all government authority emanates. People cannot possibly
altogether at the same time govern. So as a remedy to that, we have this what we call
republicanism where the people elect representatives to run the government in their
behalf. Sovereignty is also vested in them. Derivative na ni siya because originally it is
vested in the people.
Who are these delegates? We have members of Congress, where legal sovereignty
resides, the supreme power to make laws. To pass laws. And then there is what we call
actual sovereign who is the person who is vested with power to rule as head of state.
Actual head of state.
The other one is ceremonial who represents the state in ceremonial activities.
So example of actual sovereign is the president of our country. Example of
ceremonial sovereign is one who does the ceremonial cutting of ribbon etc. It
should have been the first lady but because our president is single, it is the

youngest sister.
And then we have the legal sovereign which is Congress.
Finally, we have political sovereign. Who is this political sovereign? We go back
to the people. But this is just not any people. These are the qualified voters.
Because you may be a citizen of the country, but you are not sovereign because
you are not yet qualified to vote because you are a minor, or insane or you are
convicted of a crime where the penalty is more than 2 years of imprisonment or
1 year of imprisonment. That is insofar as sovereignty is concerned as it is
exercised or where certain individuals are imbued with power.

The characteristics of sovereignty.


It is permanent or perpetual. Once it has been vested it stays there forever until

the state is destroyed.


It is non-transferrable. It cannot be transferred. To transfer it is to destroy it.

34

It is indivisible. It cannot be divided. There can only be one. It is supposed to be

and should be with the people.


It is comprehensive, absolute, exclusive. So you know that already.
Imprescriptable. It cannot be a subject of the statute of limitations.

What would happen if there would be a change of sovereignty? Where sovereignty is


transferred from one to another? What if the exercise of sovereignty is suspended such
as because of a belligerent occupation like when we have the Japanese occupation?
What would be the effect on our laws? When there is transfer of sovereignty, what
happens to the laws of the previous administration or authority?
It depends on the nature of laws that we are talking about. If it is a political law like
the constitution, for example, pertaining to the relationship between the governed and
the government or pertaining to government. That is political in nature. Once there
will be a change of sovereignty, they are automatically repealed or abrogated. Example
from Spain to US. So all laws of Spain governing the inhabitants and the Philippine
islands then were automatically abrogated unless they are retained by the new
sovereign.
What about laws that are non-political? You call them municipal laws like the civil
laws, or the kodigo de penal or penal laws? What happens to them? They remain
unless they are repealed by the new sovereign. Thats the difference. How do you
consider commercial laws? Are they political or non-political? Pertaining to legal
tender, what to use as money or currency. There will be a change in the new sovereign.
There is transfer of sovereignty. Should it be automatically abrogated or should it
remain? Like from peso from the Spanish occupation to dollars during the American
occupation. Should you adopt the peso? It is abrogated because legal tender pertains
to relationship diba between the inhabitants or among the inhabitants of the territory.
On the other hand, where there is only suspension of the exercise of the acts of
sovereign by reason of a belligerent occupancy. Take note. For example, the Japanese
occupation. Is there a change in sovereignty or merely a suspension on the exercise of
sovereignty by the duly authorized authority or the legitimate authority? During the
American occupation, who has the legitimate authority to govern the Philippine
islands at that time? By virtue of the Treaty of Paris, it is US diba? During the Treaty
of Paris there was a transfer of sovereignty from Spain to US. And US therefore had
the legal authority over the inhabitants and the Philippine islands. There was no
transfer of sovereignty during the Japanese occupation because the Japanese failed to
topple down the government established by the Americans. In fact, if you can
remember, the commonwealth government was transferred or exiled in Washington
DC. Only that it cannot exercise the acts of sovereignty because of the presence of the
Japanese in Manila. So what the Japanese had over was only a belligerent occupation.
And thus, we had two governments then at the same time. One which was the de jure
which was the Commonwealth. The other one was the de facto because it exists in fact
but not in law. De jure existed in law but not in fact. So as a consequence, what was
the effect of the laws such as the 1935 Constitution governing the Commonwealth
Government at that time? During the Japanese occupation, what happened to that
Constitution? Because it was political in nature, it was suspended. Only suspended,

35

not abrogated because there was no transfer of sovereignty. The penal laws remain.
The civil laws remain as valid unless they were repealed by the government under the
Japanese military authorities under the Second Philippine Republic. For academic
purposes and topping the bar exam, we should cover everything. Remember that after
the Japanese were driven out of the country there was the resumption of the
Commonwealth Government. What happened to the laws that were passed by the
Japanese Government? Were they automatically abrogated or merely suspended? Laws
that were political in nature were automatically abrogated, repealed, nullified. Nonpolitical laws remain good and valid.
Example: There was this case where there was this guy who got convicted for robbery.
Nangawat syag kable sa communication cables and he was convicted of robbery. And
after the resumption of the Commonwealth Government, he filed a petition for writ of
habeas corpus questioning the validity of the judgment rendered by the court during
the Japanese occupation. The question there is whether or not the decision was valid.
It depends on whether it has any political paint or implication. Kaypnallaws are not
political so therefore, if you follow the principle, they are considered as good and valid.
However, the qualification here was made by the Supreme Court saying unless it is
tainted by political complexion. What was the complication here in this case? While it
was an ordinary charge of robbery, it was later found out that he did it to sabotage the
operation of the Japanese military. So it becomes politically motivated. So with the
complexion of this political motivation, the judgment was set aside.
Another important aspect in sovereignty is this matter of Jurisdiction.
As a consequence of the state having sovereignty over persons and things found within
its territory, the state has jurisdiction/control/authority over them. Jurisdiction can
be classified into:
1. Territorial means the State has control and jurisdiction and authority over all
persons and things found within its boundaries.
a. If persons, it may be a foreigner or a resident citizen of this country.
b. But it is not absolute, as there are exceptions:
i. Heads of State are not subject to the jurisdiction of the State
because they represent the sovereign state and they are an
extension of that sovereign State that they are heading
ii. Ambassadors
iii. Foreign Ministries, etc.
iv. Military Men simply because of an agreement. It could be a
covenant like what we had with the U.S. exempting from criminal
jurisdiction, even if the act is committed in our territory.
v. International Bodies like the World Health Organization (WHO)
c. GR: Anything or any one found here is subject to our laws.
2. Personal Even if you are not found in the Philippines, within our territory, still
you are subject to the laws of the Philippines. I am referring to citizens of this
country.
a. Application of Personal Jurisdiction: Remember, status. If you considered
married here in the Philippines, regardless of whether you have
contracted divorce abroad, as long as you are still a Filipino citizen, as far

36

as our laws are concerned, you are married. Because we do not recognize
divorce in this country.
3. Extra-territorial- you can still be subjected to the laws of this country.
a. Example: you are working in the Philippine Embassy abroad. It will be if
you have committed a crime it would be as if you are committing a crime
on Philippine soil and you can be subjected to prosecution under our
laws. Although you committed it outside of our territory, but within the
premises of an extension of our territory, which is an embassy.
While this is more relevant in Public International Law. I am giving you an example as a
consequence of the States enjoyment of sovereignty, it has jurisdiction. And Jurisdiction
is classified into those three as enumerated.
Included as an exception to the territorial jurisdiction of the State over persons and
things are foreign military vessels within our country. We do not have jurisdiction over
them.
Arigo v. Swift
Because remember that controversy relating to Tubbataha Reef where this USS
Guardian entered and destroyed our reef. They applied for a Writ of Kalikasan. The
question there was can they be subjected to the Writ of Kalikasan. In short, does our
court have jurisdiction over them? Here, it was said there was a waiver of immunity for
criminal jurisdiction under the Visiting Forces Agreement (V.F.A.). Under the VFA, it
was stipulated that these US military men,

who are here in the Philippines for

military exercises are subject to our criminal laws. They have waived immunity under
our jurisdiction. That is why we have some prosecution against Lance Corporal Daniel
Smith because they have waived their immunity under the VFA. So, invoking that
waiver, they sued the USS Guardian for damages for destroying our coral reef.
Question: Do we have jurisdiction? It is found within our territory, can they be
subjected to a Writ of Kalikasan?
The Supreme Court said NO, THEY CANNOT. Military warships are not under our
jurisdiction. They are considered extensions of the territory it represents or the flag
that is flown by the warship. Even foreign merchant chips, we have the French Rule or
English Rule. You apply the territoriality principle or you have to apply the nationality
principle .
IMMUNITY OF THE STATE FROM SUIT
As a consequence of the enjoyment of the States sovereignty, not only that it has
jurisdiction over persons and things found within its territory, also it is immune from
suit because there cannot be a legal right as against the authority that makes the law
on which that right depends.
Also called The Royal Prerogative of Dishonesty because even if your claim against
it is legal, the State has no liability because they were saying that the State cannot
commit mistakes. It has to be denied because the State cannot possibly cause injury
to anyone.
General Rule: The State is immune from suit.
Who can be sued?
1. Republic of the Philippines (named as party defendant)
2. An unincorporated government agency

37

3. Public Officer performing a governmental function.


What are unincorporated agencies?
-

Government agencies or instrumentalities which do not have a separate or


distinct personality or independent personality from the government itself.

Effect of suing a public officer performing governmental functions:


-

As a general rule, the suit will not prosper, as it will amount to suing the State
itself.

Test to determine if suit against the state


It may be a suit against the republic, but if it doesnt involve appropriation of public
funds or loss of government property, that action may still prosper because ultimately
it is not a suit against the state in the event a decision is rendered by the Court
against the entity of government.
The bottomline is the question: If I sue this entity of government, will this ultimately
amount to the State answering for the payment of damages or losing its property?
If that is the end result, then in which case, that is a suit against the state.
Suit against a Public Officer
If you sue also a government official to compel him to perform his duty. Is that issued
against the State? Certainly not, because the ultimate result if a decision is rendered
against the public officer is simply to order him to perform his duty and it would not
involve a disbursement of public funds or loss of government property.
Example1: When you sue the Register of Deeds for the issuance of a duplicate copy of
your title, should the case be dismissed because it is a suit against public officer?
Certainly not because the end result if your petition is granted is just simply to order
the Register of Deeds to issue a duplicate copy of your title that is on file in their office.
That will not involve any disbursement of public funds on the part of government.
Neither would it involve the loss of government property.
Example2. When you file for example an application for registration of title. Who do
you sue? The Republic of the Philippines, represented by the Bureau of Lands or the
DENR. These are all government offices. Should the case be dismissed outright for
being a suit against the State? In the event judgment is rendered by the court that the
property belongs to the applicant and therefore registered in his name, would that
entail disbursement of public funds? Or loss of government property?
-

It does not involve disbursement of public funds. How can government lose
property when the subject land never belonged to it. In fact, the declaration of

the court is that it belongs to the applicant.


This is not considered a suit against the State, even if you implead the Republic
of the Philippines or an unincorporated agency of the government.

Suing an Incorporated Agency of the Government


-

An incorporated agency is like any ordinary corporation, only that it is

controlled or owned by the State.


It has its own charter which allows it to sue and be sued.

38

It has a personality distinct and independent from the government of the

Republic of the Philippines.


Usually it is engaged in the discharge or performance of proprietary functions

like business.
Example:
o Land Bank of the Philippines
o Manila Hotel (?)
o GSIS
Question: Are they suable? Do they enjoy immunity from suit?
o NO. They do not. They are suable. Incorporated agencies are suable
because the law creating them or the charter governing them, allow them
to sue and be sued. It would be as if they gave their consent.

Suing Municipal Corporations


-

Hybrid
It has a dual function: governmental and proprietary such as a local

government unit for example.


Example: A Charted City
Question: Is it suable?
o Make a distinction. If proprietary (function), it is suable. But if
performing a governmental function, yes. No less than the Local
Government Code gives them the power to sue and be sued, only insofar
as their property rights are concerned. You can sue them in order to

prove your case against it.


Question: Is it liable if one allows it to be sued? In the event the court decides
against the LGU, can you hold that LGU liable?
o It depends. Make a distinction as to function. If proprietary function,
YES LIABLE. You can ask for a Writ of Execution because the funds are
not public in character. But if in the discharge of a governmental
function, then you need another consent in order to hold a municipal
corporation exercising governmental function liable.

Suing Unincorporated Agencies of the Government


-

General Rule: They are not suable. To sue them is tantamount to suing the
government itself, the Republic of the Philippines because they dont have a
separate or distinct personality from the Government of the Republic of the

Philippines.
Especially if performing governmental functions.
Sometimes, incidental to their performance of governmental functions, they

may also perform proprietary functions.


Example: The Bureau of Customs function is governmental (collection of taxes,
implementing the laws on taxation). What if they engage in the business of
arrastre? In the course of doing that, it causes injury to a taxpayer or to
anyone. Can that aggrieved party or the one that has been damaged sue the
Bureau of Customs due to the damage caused by its business through the
arrastre operations? [Bar Exam Question]
o The test now is What is the primary function of this government entity?

39

If purely governmental, and that function such as arrastre is merely


incidental to

the performance of a governmental function, that

unincorporated agency remains non-suable. In other words, it remains


to enjoy immunity from suit. As long as the business is merely
-

incidental.
But if purely business, even if it is unincorporated, it may be sued.
o Example: Bureau of Customs engaged in the business of a restaurant.
Somebody had some problems with his stomach after eating. Can that
client/customer sue that Bureau of Customs?
YES. Because a restaurant has nothing to do with collection of
o

taxes.
Camp John Hay case - Restaurant owned by the US military forces. One
of the chefs peed into the soup of a customer. Customer sues Camp John
Hay. Suable because the restaurant is purely business. Although the US
armed forces is not suable, because it was engaged in purely business
(not incidental because what does a restaurant have to do with military
operations of the US here in the Philippines?). So, it was sued and the
action prospered.

Suing Public Officers


-

Question: You are a public officer being sued. Can you move for the dismissal of
the case outright. Should the court dismiss the case outright because a public
officer is immune from suit?
o Immunity from suit may not only be invoked by the President, even a
janitor can invoke it. If made to answer for damages, the office that he

represents may have to pay for it, then that is a suit against the state.
Follow-Up Question: He may not be sued. But should the case be dismissed
outright because he enjoys as a public officer, he represents that state that is
immune from suit?
o NO. Because if there is allegation that it was an ultra vires act and there
was no authority, beyond his authority, in excess of, grave abuse of his
discretion. Or if he had the authority, it was committed with malice, bad
faith, gross negligence, then it is not considered acts of that State. That
public officer can be sued on his personal liability. Or you may sue the
public officer in his personal capacity. In the event that judgment is
rendered against him, the government is not necessarily held liable for it,
but a personal liability of a public officer.

State Immunity Continued..


Or you may sue the public officer in his personal capacity.
Therefore, even if a judgment is rendered against you, the government is not
necessarily

be held liable for it, but a personal liability of the public officer. Then

again, you take note, theres an exception to this. Remember the case of:
Amigable v. Cuenca.
Facts:

40

Hes a director of the Public Works and Highways. He took the property without just
compensation. Now, he is being sued, they demand payment of just compensation. I
think it involves the property in Gorordo Avenue. They sued the public officer.
Amigable claimed as a defense that he is a public officer immune from suit. So, they
countered by saying that he acted without authority, it was an ultra vires act because
he was never authorized to expropriate the property.
Generally, it should have been a personal liability of that public officer. Here, the
government is not liable because that person acted without authority and that should
have not been considered an act of the State subject to a suit.
Held:
The SC made an exception to this, guys. Simply because according to the SC, this
immunity from suit should not be used by the state to perpetrate an injustice to
the citizen of the country. Because, assuming there is no authority, he has nothing
to pay while at the meantime the State is enjoying the property of X. That would not be
fair to X who would not be getting anything simply because the public officer whose
negligence resulted to the failure of the payment or the owner of the property not being
able to get any payment from the taking of this property.
As a rule, the state may not be sued without its consent. So in other words, it may
can be sued provided it gives its consent. How may consent be given? Consent may
only be given through legislative act. Not by a contract, not by a declaration of the
President of the Republic.
Case unnamed
Facts:
Remember I suppose it was the Department of Agriculture. There was a contract being
entered into between that government agency with a private individual, and in the
contract they stipulated that in case of breach or violation there would have recourse
against each other. Apparently, there was a breach committed by the government
entity. Now, the government is being sued. So, the question there is, can you use that
contract as basis to sue as if the state has given its consent to be sued?
Held:
SC said: no you cant even if it was stipulated in the contract. It can only by a
legislative act or a statute for the state to give its consent.
What if, for example, the lawyer of the government gave that consent to be sued? The
lawyer cannot waive the immunity in behalf of the State. What if it were the President
of the Republic of the Philippines?
Sandoval v. Republic
Facts:
Do you recall the Mendiola Massacre? Where they had this rally against the palace.
This relates to the Luisita Hacienda. And there were some farmers who got killed in
that confrontation between the military and the farmers who were rallying at that
time. President Aquino at that time made a declaration that investigation should be
conducted, that whoever should be responsible for the death and injuries of the
farmers should be made to answer for it. By that declaration, the military was sued
and they were saying that there was consent given through the President who made

41

that announcement. The question there was there a valid waiver of immunity or the
giving of the consent?
Held:
Answer is NO. Again, only by legislative act.
HOW IS CONSENT GIVEN?
It could be:
1. General; or
Example is Article 2180 of the Civil Code on special agents. Remember? The
giving of consent of the state by special agents. What are special agents?
Those who are designated functions foreign or alien from their job. Should
they cause injury, the state has given its consent to be sued expressly.
Should they cause damage or tort, the injured person shall have recourse
against the office that he is connected with. He can be sued, in other words,
for damages.
Commonwealth

Act

327

as

amended

by

Presidential

Decree

1445.

Remember the general auditing Law, Accounting Law, etc. On money claims
especially arising from the contract. Where do you file your claim. The
condition there is on the act you make a claim on the Commission on Audit.
Once it is denied, you can already sue directly to the Supreme Court on
certiorari. Otherwise, you cannot sue the government without first coursing
through prior, there should be prior filing, of your claim with CoA first which
has jurisdiction over money claims.
Provision in Civil Code, Article 2186, if you fall in the manhole, here, in our
roads or you are injured because of improper maintenance of the road,
depending on who has jurisdiction or the obligation to pay, DPWH or Local
Government Unit. Now, if you are a victim of the improper or no
maintenance of this infrastructure, you can sue the state, under that law
the State has given its consent to be sued.
Bar Question: This is with respect to Presidential Decree 1445. There was a
contract between PNP, an incorporated agency, with the supplier for rain
coats. After, PNP did not pay. It is being sued by the supplier. Now, the
contract was in Cebu City, the case was filed in Makati City because it is
where the supplier is conducting its business.
- Now, the examiners are really bright. Wrong venue, because it was
stipulated in the contract, it should have been filed in Cebu City. Without
taking into consideration if PNP could really be sued. They directly went into
the venue.
- So, you have to be careful, in the first place, can it be sued? Considering
that PNP is incorporated. And this a governmental contract because
raincoats are to be used by the police in the maintenance of peace and order
which is a governmental function. This is not business.
- Then in which case, what should have been done? Because PNP cant
directly be sued, under PD 1445, you should have first filed your claim with
the Commission on Audit, only when it has been denied by CoA that you can
now sue CoA and the PNP directly to the SC.
2. Special

42

These are specific legislative enactments by Congress authorizing a specific


individual to sue the state.
Now you go to Congress, lobby for a statute.
As a judge, we first look into the general law, then we go to the special law.
Because, it is attached there. Now, if it involves disbursement of public
funds or loss of government property, even if the OSG does not file a Motion
to Dismiss, it would be dismissed outright. So, it has to be attached to the
petition.

IMPIED CONSENT
Even without a law, the government, through its acts, are considered to have
waived its immunity from suit.
1. When the government initiates the filing of a complaint against a private
individual for affirmative relief;
- Take note that the purpose of filing is to seek affirmative relief. Because, if
the purpose of the filing of the complaint is to resist a claim against the
State or against the government then it cannot be considered as a waiver of
-

its immunity.
For example, you sue the State for a collection of sum of money. And there is
a counterclaim for damages and in the event the case is decided against the
government. There is a counterclaim, will that prosper against the
government? The answer is yes. Provided that that counterclaim was

initiated for the purpose of seeking affirmative relief.


But, when the State intervenes in a case in order to prevent a claim against
it, then that would be considered still as the State being immune from suit.
That cannot be considered as a waiver of its immunity. Therefore, in the
event the case is decided against the States intervention. Here take note
that the counterclaim may not prosper against the State because the
intervention was filed by the state for the purpose of resisting a claim
against it.

2. When the government enters into a business contract;


- If governmental contract, it is immune from suit. To sue it, you must first file
-

your money claim arising from that contract with CoA.


But, if you say that the contract is purely commercial or proprietary, then
you can sue the State directly because the State has stooped down to the
level of a mere ordinary individual and therefore suable in case of a breach
of a contract.
Unnamed Case #2
Facts:
An incorporated agency entered into a contract with a media company for
publication purposes. The purpose of the publication is to raise funds,
nothing to do with governmental functions. For example, to promote a
beauty contest. The government, however, did not pay the media or
publishing company. The publishing company now sued the government.
Question: Will the action prosper?

43

Held:
The Answer is YES because the contract entered into by the government in
that case is purely business.
3. When the government engages primarily business;
- It has to be, primarily in business. Because, if the business that the
government is engaged in is merely incidental to the performance of its
-

governmental functions, still it is immune from suit.


Example: PNP engages in business of a barbershop. Is that governmental or
proprietary? It is for the purpose that the haircut of all members of PNP is
uniform, so that they have their own barbershop. But, it is open to the
public as well. Now, that is commercial. It has nothing to do with
maintaining peace and order. In which case, it is suable if it engages in that
kind of business.

SUABILITY AND LIABILTY


Now, the more important part here is liability. Because, if allowed to sue the state,
thats one thing. All that is going to happen is that you are allowed to prove your claim
against the state.
Now then, there is a latest decision relating to this immunity from suit.
UP v. Dizon
Facts:
Is UP suable? It has its own charter. It allows it to sue and be sued. But, in the recent
decision of the SC. Since UP has a lot of property, it leases it. In one case, UP lost and
a writ of execution was issued by the Court garnishing the funds of UP. Now, the
question is, can they be garnished?
Held:
Well UP may be suable, but the funds are public in character. They cannot be
garnished. Suability is one thing, liability is another thing. You need another consent
to hold UP liable because we are talking about public funds.
Can you ask for a Writ of Execution?
Once judgment is rendered by the courts against the State, can you ask for a writ of
execution and enforce it against the property of the State or any of its unincorporated
agency or against its funds by garnishing the same? Is it automatic? Take note that we
have emphasized the suability is one thing and liability is another thing.
You may be given consent to sue the state to prove your claim against the state but it
is not automatic that once you get a favorable judgment you are entitled to a writ of
execution. Because of the immunity of the State, and even if there is consent given,
the proceedings will only be up to the rendition of the judgment. The court has no
basis to issue the writ of execution because you will be needing another consent
through a law that will be authorizing the disbursement of funds.
What will happen here? You will file your claim against the Agency concerned. And if
CoA finds it in order, it will submit it to the President so that it will be included in the
budget and that budget will be submitted to the Congress for Congress to appropriate
the funds for that purpose of authorizing the disbursing of the funds. Thats how
complicated it is.

44

So, it takes time in other words. So, ayaw pag-tugatuga in suing the government
because any disbursement of funds have to be authorized by law. In case of Local
government, what do you do? Theres judgment, still you go to CoA for money claims.
And thereafter, there will be a supplemental budget to be passed. What if the local
government unit refuses? You file a mandamus against the local government unit for
the passing reenactment of a supplemental budget in order to satisfy the judgment.
In Expropriation Case
In an expropriation case, however, take note, can the State invoke immunity from suit?
Now, we have to remember that in every expropriation case, there is a requirement of
budget. So, technically, the State need not do an affirmative act in order to appropriate
funds for the payment of just compensation, because even prior to case, there was
already an authority to appropriate funds and to allocate funds for the payment of just
compensation.
So, in the event that a judgment was rendered in favor of the government for the
taking of the property, then there will be payment of just compensation. The problem,
however, is when the allocated funds is insufficient, because after all the
determination of just compensation is a judicial function, not by Congress. So, it is
always possible that the amount allocated by the Congress will be smaller than the
finding of the court. Now, assuming that the appropriated amount is Php 1M, and the
just compensation for an expropriated property is Php 2M, and the owner sues the
State. Does that violate the States immunity from suit? The answer is no, because
there was already an appropriation of funds.
However, assuming that a judgment has been rendered, can the owner of the
expropriated property ask for a writ of execution? He cannot. What the Courts can do
is only to order the release of the Php 1M that was appropriated. In fact, the
appropriated amount (or the deposit) is initially given to the owner upon the issuance
of a Writ of Possession in favor of the State.
In case of Deficiencies
How does he enforce then the deficiency of the other Php 1M? Clearly, he
cannot file for a writ of execution there. The remedy is money claim. The proper body
before which to lodge the claim depends on what agency is the implementing agency
for the expropriation. For example, if it is the DPWH, then the owner must file the
claim before DPWH, which will recommend to the President that the amount be
included in the budget, and in turn, the President will submit the budget to Congress,
which will appropriate funds for the payment of the deficiency, or you may file it with
COA.
The remedy then is not a writ of execution. Why? Why is a writ of execution not the
proper remedy? Remember that a writ of execution is an assurance that the judgment
will be satisfied. You might just be holding an empty bag. As much as possible, you
want the judgment to be satisfied. You may have won in the litigation, but lost in
reality because the defendant has no more properties.
Here, in an expropriation case, the State (or government) is presumed always to be
solvent. You have nothing to worry. You dont have to attach government properties.
Ordinarily, in a civil case, attachment is always prayed for against defendants

45

properties. But that is not the case in relation to the government. Also, you cannot
also garnish the governments money in the bank. Remember that those amounts of
money have already been earmarked for certain purposes as stated in the budget. Only
that you need an authority for disbursement.
GOVERNMENT
What is a government of the Republic of the Philippines according to the
Revised Administrative Code? It pertains to the governmental operate entity through
which the functions of the government are exercised all throughout the Philippines,
including, save as the contrary appears from the context, within which the political
authority is made effective, whether pertaining to the autonomous regions, provincial,
city, municipality and barangays and such other local government entities.
Distinguishing: Governmental/ Constituent and Proprietary/ Ministerial
Thus, we should know very well the distinction between governmental or
constituent functions and proprietary or ministerial functions. Governmental
functions like peace and order, defining relationship between husband and wife, etc.
Proprietary are those optional functions of the government, which can be exercised by
private persons, but happened to have been exercised also by the government.
Example of this is insurance (GSIS). This can be exercised by private persons, but is
exercised also by the government. The government engages in that business to give an
assurance to the public that they have something to get when they retire. This
function is optional. Another example is housing.
Now, ordinarily the government need not engage in such function because they
can be carried out by private corporations. In reality, however, because it is mandated
by the Constitution pursuant to the Social Justice clause these functions have
become mandatory, not anymore a function. The Constitution requires that the
government should implement social justice in all facets of human life, giving those
who have less in life, more benefits in law. Thus, authors suggest that, in the context
of the Philippines, the distinction between the two functions has been blurred. In view
thereof, it has now become mandatory for the government to engage in such
ministral functions because many persons cannot get a decent life without
government intervention.
However, this should be put into proper perspective. For purposes of
determining the liability of the government, the distinction is still relevant, that is, if
the function is governmental, it cannot be sued without its consent and if proprietary,
it can be sued even without consent; if governmental, it is not subject to the statute of
limitation, if proprietary, it is subject to statute of limitations. However, in terms of
obligation

to

the

people,

there

is

no

more

distinction

between

mandatory

(governmental) and optional (proprietary) functions pursuant to the Social Justice


clause in the Constitution.
Parens Patriae. Another function of the State is that of a parens patriae, which
is the States role to protect the downtrodden amongst its constituents or those who
cannot protect themselves, like the disabled, the minor children and women.
ARTICLE II
DECLARATION OF STATE PRINCIPLES AND POLICIES

46

We are now on Sec. 2, Art. II. It has two parts.


Renunciation of War. First is the renunciation of war. The renunciation is not
absolute. The war that is renounced is only offensive war. It does not apply to
defensive war. To renounce a defensive war is like committing suicide.
Determination of the Existence of a State of War. The Congress has the power to
declare the State of War by 2/3 votes voting separately. Who declares war? The
President has the power to declare war, but he may not automatically have Emergency
power after declaring war, as delegation by Congress is needed for him to exercise
Emergency legislative powers.
Incorporation Clasue
What we emphasize in Sec. 2 is the incorporation clause. INCORPORATION
CLAUSE. Under Sec. 2, it is provided that the generally accepted principles of
international law are automatically adopted as part of the law of the land. You dont
have to pass a law expressly adopting the generally accepted principles of international
law in order for them to have effect in the Philippines.
A. Two ways.
1. Transformation making an international law a domestic law through
legislation.
2. Incorporation there is no need of legislation. This is applicable when there
is no local statute applicable to the case at hand. (See Llamanzares v.
COMELEC).
B. Sources. T
he sources are:
1. Ratified treaty by the President with the concurrence of 2/3 votes of the
SENATE;
2. Customary international laws [remember the requirements: opinion juris sive
necessitates, etc. See Ichong v. Hernandez];
3. Treaties which have become part of customary law (Llamanzares v.
COMELEC).
Ratification
The Ratification of the Treaty is the sole prerogative by the President. Thus, the
President cannot be compelled to ratify and submit a treaty to the Congress for review
and concurrence. Hence, even if the same is concurred in by the Senate, but was not
ratified by the President, then it cannot bind the Philippines. (Pimentel v. Executive
Secretary).
Remember always the Rome Statute, which created the International Criminal
Court of Justice. At the beginning, it was signed by Pres. Estrada, but was not
concurred in by the Senate, because Pres. Arroyo, Estradas successor, did not submit
the same to the Senate for concurrence. Now, are we bound by it? No. However, but
because the Statute was ratified by a large number of nations, it may still bind us
not on the basis of a ratified treaty but by virtue of a customary international law,
which is one of the sources of the general principles of international law.
An example would be the principle of pacta sunt servanda, so that even if the
treaty was not concurred in by the Senate but signed, we are still bound by it under

47

the principle of pacta sunt servanda. So, because of that, we can still be compelled to
follow the treaty, especially that there is an incorporation clause. Another example of
customary law is the immunity from suit of Heads of State, Ambassadors, etc.
Customary law.

However, even if there was no ratification or any treaty,

customary laws can come into the domestic legal sphere through the Incorporation
Clause.
Recognition of Judgment. The Philippines is not bound by the courts of the other
countries, because we are not subject to any countrys courts. However, while
Philippines have no agreement with the US to recognize the decision, there has been a
customary law, hence obligatory, to recognize judgments of other countries, subject to
the rules of the country. (See Mijares v. Ranada).
Elements. Customary law, to be binding, it must result from two (2) elements:
(1)

It has been established and widespread and consistent observance of

(2)

the practice; and


A subjective aspect (psychological element) which is opinion juris sive
necessitates. Implicit in this element is a belief that the practice is
obligatory by the existence of a rule of law requiring it (Mijares v.
Ranada).

In contrast, the Yogyakarta principle, as used by the LGBT community in


asserting their rights, which was recognized in Japan was discussed in the case of
Ang Ladlad v. COMELEC, where it was said that the principle there was not reflective
of the current state of international and which do not find basis in the sources of
international law enumerated in the Statute of the ICJ, it having no discernible norms
that would bind the Philippines under the general principles of international law. It
can, however, be categorized as a soft law which does not form part of the general
principles of international law, without support of state practice or opinion juris.
Llamanzares v. COMELEC
The most recent case where this principle was applied was the case of
Llamanzares v. COMELEC on the principle of foundling. So that, even if we have no
domestic laws on foundlings, the international law on foundlings finds applicability in
the Philippines.
In this case, Poe was declared as a natural-born citizen, because a naturalborn citizen is one who, without having to perform a positive act to acquire citizenship,
was vested by law, by international law at that, and by the Constitution through the
incorporation clause. It was not Poe who had to perform an act. It was conferred upon
her by the State.
There was this another case involving a Japanese national, who was indicted
and who questioned the creation of a Commission initiating his indictment, based on
an international document, in which the Philippines was not a signatory. The Supreme
Court found for the validity of the creation of the Commission saying that, while the
Philippines was not a signatory to the Convention, such was signed by the majority of
the members of the international community. Hence, it has become a customary
international law. And because of the incorporation clause, the same has practically
been adopted in the legal system of the Philippines.

48

Remember also that other case regarding the DOH Secretary requiring
pharmaceutical companies to put a label in powdered milks that breastmilk is the best
milk pursuant to a WHO International Convention. It was questioned because the
Philippines was not a signatory to it. But the Supreme Court upheld the validity of the
same, based on the general principles of international law and the incorporation
clause.
At

this

time,

we

are

not

prepared

to

declare

that

these Yogyakarta

Principles contain norms that are obligatory on the Philippines. There are declarations
and obligations outlined in said Principles which are not reflective of the current state
of international law, and do not find basis in any of the sources of international law
enumerated under Article 38(1) of the Statute of the International Court of Justice.
Using even the most liberal of lenses, these Yogyakarta Principles, consisting of
a declaration formulated by various international law professors, are at best de lege
ferenda and do not constitute binding obligations on the Philippines. Indeed, so much
of contemporary international law is characterized by the soft law nomenclature, i.e.,
international law is full of principles that promote international cooperation, harmony,
and respect for human rights, most of which amount to no more than well-meaning
desires, without the support of either State practice or opinio juris.
Most recent case where this principle was applied was the case of Llamanzares
vs Comelec on the principle of foundling. The Supreme Court applied international law
as a generally accepted principle of international law. So even if you do not have the
domestic law regarding on the concept of foundling as regards to citizenship, it was
then recognized by the Supreme Court that foundlings are likewise citizens under
international law. Generally accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the laws of the land even if they
do not derive from treaty obligations. Generally accepted principles of law include
international custom as evidence of general practice accepted as law, and general
principles of law recognized by civilized nations. The common thread of the UDHR,
UNCRC, and ICCPR is to obligate the Philippines to grant nationality from birth and
ensure that not child is stateless. Even if she is a foundling, these laws favorably
presumed her to be a citizen of the country where she may have been found or her
parents are presumed to be Filipinos because of the fact that she was born in the
Philippines. The principles stated in the Hague Convention on Certain Questions
Relating to the Conflict of Nationality Laws under which a foundling is presumed to
have the nationality of the country of birth. The Convention on the Reduction of
Statelessness where there is a presumption that the foundling born of the citizens of
the country where he is found bind the Philippines although we are not signatory to
these conventions. While the Philippines is not a party to the 1930 Hague Convention,
it is a signatory to the Universal Declaration on Human Rights, Article 15(1) of which
effectively affirms Article 14 of the 1930 Hague Convention. Article of 1961 United
Nations Convention on the Reduction of Statelessness merely gives effect to Article
15(1) of the UDHR. By analogy, although the Philippines has not signed the
International Convention for the Protection of Persons from Enforce Disappearance,
the Supreme Court ruled that the proscription against enforced disappearance in the
said convention was nonetheless binding as a generally accepted principle of
international law. Here, Poes evidence shows that at least sixty countries in Asia,

49

North and South America, and Europe have passed legislation recognizing foundlings
as its citizen. 166 out of 189 countries surveyed (or 87.83%), foundlings are
recognized as citizens. These circumstances, including the practice of jus sanguinis
countries, show that it is a generally accepted principle of international law to
presume foundlings as having been born of nationals of the country in which the
foundling is found. Hence, Poe as a foundling is a natural-born citizen.
A natural-born citizens are those who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect their Philippine citizenship.
What was the explanation of the Supreme Court? It was not Poe who had to perform
an act in order to acquire her Filipino citizenship. It was conferred upon her by
government of the Philippines. Ingon pa nila kuno you considered not a natural-born
if you, personally, have to perform an act in order to acquire or perfect your
citizenship. In this case, wa man kunoy gibuhat si Poe. It was the government that
gave her that citizenship. The fact is that she was adopted, she is presumed to be a
citizen because only citizens of this country can be adopted.
There was this case (Kuroda vs Jalandoni) about a Japanese national who
questioned the validity of the creation of a military commission based on the ____. The
Philippines was not a signatory to any of these conventions. So what happened here
was that the Supreme Court sustained the validity of the creation saying that while we
are not a signatory to those conventions, these conventions were signed practically by
the majority of the members of the international community which has become
obligatory customary law or conventions that have become customary law. Because of
that, under the incorporation clause, automatically it became part of our legal system.
There is this another case which requires pharmaceutical companies to place
on milk products that breast milk is the best milk. Why would the pharmaceutical
companies follow when congress did not pass a law requiring such? The justification is
the existence of this international convention to which we are a signatory and that has
become customary law. By the Incorporation Clause we automatically adopted it as
part of our legal system.
In case there will be a conflict between a treaty and a statute, which of these
two will prevail? It will depend on the court that will hear the case. If it will be our
court, it is always our statute that will prevail. Why? It is because first of all our courts
are created by statutes. So then, the courts have the obligation to sustain the laws
that created them. In Ichiong vs Hernandez, we have a treaty we entered into with
China where there was the assurance that whatever rights that are enjoyed by our
nationals will be the same rights that will be enjoyed by the Chinese as part of our
friendship with them. What happened? There was the Retail Trade Nationalization Act
where the foreigners in general, more particularly the Chinese, were prohibited from
engaging in retail trade business. And so they complained. That is a violation of the
treaty. This law came about after the treaty was entered into. So the conflict. So how
do you treat the conflict? Supreme was saying that if you can harmonize them, by all
means reconcile them. If they cannot be reconciled, then always the statute will
prevail. With more reason if it is contrary to the constitution, our constitution will
always prevail. What majority of the countries follow is that whichever comes later that
will be a repeal, amendment, or modification of the earlier treaty or statute of what
was passed following the statutory construction principle. Because treaty is no

50

different from an ordinary statute in the equal protection clause, they are the same,
the same status, treaties are not superior to statute, neither are the statutes superior
to treaties. So if they are on equal footing, what happens now? If there is a treaty that
we entered into and subsequently a statute was passed contrary to the treaty, the
statute will be treated as an amendment if not a repeal of the earlier treaty. Vice-versa,
if the statute was first passed and subsequent thereto a treaty was entered into, then
the treaty prevails over the statute. Do you understand? Okay. That has been followed
generally in the international community but not here in the Philippines. What we
follow is that always our laws should prevail over any international law or any
generally accepted principle of international law. Do you understand that guys? Any
problems, any questions or clarifications relating to that?
[from break] the civilian authority is supreme at all times over the military. The
important thing that you should know is the manifestations of the supremacy of the
civilian authority at all times over the military. Like for example, the President who is
the highest civilian authority being as the commander in chief. For being the
commander in chief does not make her or him a member of the military remember
because of the supremacy of the civilian authority at all times over the military.
Cases that you must remember relating to this: you have IBP vs Zamora.
Gudani vs Senga. In IBP, it was deployment of marines to the shopping malls. Is there
a violation of the primacy of the civilian authority over the military? There is none.
Because they were just attesting, they were still under the control of the PNP chief.
In Gudani vs Senga, Gudani was court martialed because refused to heed to
the orders of Senga who was then the chief of staff before a legislative inquiry. He
violated the chain of command. He said that the president cannot invoke executive
privilege, he was not under the executive privilege of the president [inaudible,
extraneous noise] because he might be cited for contempt. The supreme court said he
shouldnt be concerned about that. What you should be concerned is you are not
following the orders of your superior because it would be too dangerous if you violate
the chain of command. There was an order from the President , the Commander in
Chief then, coursed through the chief of staff which should decidehere it was
justified by the supreme court that there was no violation of any right when this
Gudani was subjected to court martial because of his failure to follow the chain of
command. Court martial is an instrument to maintain the supremacy of the civilian
authority over the military.
All the military are subject to the jurisdiction of the court martial. You recall
the cases of Trillanes and others, they were prosecuted before the RTC of Makati and
at the same time they were also court martialed and they want it to have the cases
dismissed by this court martial saying that civilian court has already acquired
jurisdiction over them because it arose from the same incident, the coup d etat. What
did the Supreme Court said in this case? The Court martial has jurisdiction. Precisely
it was for the purpose of maintaining the supremacy of the civilian authority over the
military. Remember that the decisions of the court martials are subject to appeal not
to any civilian court but to the president as the commander in chief of the armed
forces so that these military men will hold the line that thy were under the civilian
authority at all times.

51

Among the things you should remember to maintain the supremacy of the
civilian authority, you have the limitation on the call of duty of the chief of staff for
how many years and extended in cases of emergency. Proportionate recruitment of
members to the AFP because it would be dangerous due to their brotherhood for they
can stage a coup d etat, like not from the same province or ethnicity, proportionate.
Then there is the matter that if you are active in the military you cannot be appointed
in any civilian position. Then there is the matter of them insulated from politics. They
are not allowed to engage in political partisanship. Then they are required to swear to
support and uphold the constitution of the republic of the Philippines.
On the professionalism of the members of the AFP, just go over those. In bar,
sometimes, they will ask you to cite provisions of the constitution that will manifest
the supremacy of the civilian authority at all times.
BAR: Does PNP have the obligation to protect the countrys territorial integrity?
ANSWER: No. The PNP is only for peace and order internal. The AFP is the one who
is tasked to protect us from external forces as per the second paragraph of Sec 3 Art
II The armed forces of the Philippines is the protector of the people This is the basis of
the military in engaging in adventurism or their coup d etat exercises because they
are the protector of the people from corrupt government. Take note: That this is just a
matter of principle. Without legislative enactment, this cannot be used as basis in
court.
Section 4, Art II. Whose primary duty is it to protect the State? Well, it is the primary
duty of the government to serve and protect the people. BUT the people may be
required to render civil and military service to serve and protect the government.
Section 6, Art II. On Separation of Church and State.

How is this reinforced? There are certain provisions in the constitution like the
Freedom of Religion; Non-establishment of religion; prohibition of use of public
funds in for religious purposes except if the priest is working in the penal
institution,

orphanage

or

leprosarium;

Non-accreditation

of

religious

organization as political party


EXCEPTIONS where state has accommodated:
o For property tax that are directly and actually used for religious purpose
o Optional religious teaching in public schools
o The use of public funds in penal institution, military
o Foreign Ownership of educational institutions as long as they are
established by religious groups and mission groups
Case: Ang Ladlad vs. Comelec on basing it on morality in accrediting the LGBT
party. By adhering to a certain morality in the standards (by using the bible or
Koran) is in fact, establishing a religion which is a violation of the separation of

church and state.


Islamic Dawah Council of the Phils case the bottom line is, while there may be
separation of the church and state, there is still what we call the principle of

Benevolent Neutrality Accommodation.


Estrada vs. Excritor BENEVOLENT NEUTRALITY ACCOMMODATION: As long
as there is no clear and substantial evil present on the account of allowing the
practices of religion despite the separation of church and state. The freedom of
religion isallowed, if no present danger, even if there is separation of church and
state.

52

Imbong vs. Ochoa RH law; While there is the respect for the Church, the
church may not impose its belief on the state.

Section 7, Art II. Pursuing an Independent Foreign Policy

Just read the case of Angarra vs. WTO

Section 8, Art II.

On Nuclear Weapons is this absolute? The prohibition is only on nuclear arms

BUT beneficial use of nuclear power is not prohibited (e.g. Nuclear power plant)
Everybody is using nuclear arms has to be the consistent with national

interest
This is the reason why EDCA and the Visiting Force Agreement is greatly
frowned upon in the Philippines because of the possibility that they would be

bringing with them nuclear arms which is prohibited under our constitution.
By the EDCA, has been received as constitutional.

Sec 12, Art II.

Imbong vs. Ochoa: RH law, is it unconstitutional? No. It does not promote


according to the SC because what is being prevented is the fertilization. And
there can only be a fetus when the same was already fertilized where the egg
and sperm meets. What is prevented by the contraceptives is the meeting of the
egg and sperm. Another point by which it is sought to be unconstitutional is
that it is against the provision of protecting the family. Remember that the use
of condoms or surgical minors without consent of the parents was declared
partly unconstitutional. SC said conception starts from the moment of
fertilization; only those contraceptives that kill the ovum will be declared
prohibited. Sec 7 of the RH law in case the minor undergoing procedure without
consent of the parent is unconstitutional in terms of protecting the family and
upholding the parental authority.

Sec 15 and 16, Art II.

Check Imbong vs. Ochoa case


Sec 16 is self-executory according to SC in the case of Oposa vs. DENR
Secretary. While it has been taken from Art II which is generally non executing,
but this is a public right in itself and thus it is self-executory. No need of

legislative enactment and we can enforce this as a matter of right.


Intergenerational Responsibility to maintain a healthful and balanced ecology
(Oposa vs. Factoran) to preserve the timberland, the forests for the next
generation.

Sec 17, Art II

Merely directory on giving priority on education


Read the case of Carague

Sec 26, Art II. On Political Dynasty

53

Is this prohibited? YES but it should be defined by law. There is no law yet

hence, you cannot implement it yet because it is just a guideline.


If not followed by congress, remedy is election.
See Pamatong case under the constitution, there should be equal access and
opportunity to public service, SC said while it is true that you have the right to
run for public office but what is provided in the constitution is a mere guideline

which is subject to legislative requirements.


North Cotabato vs. GRP peace panel emphasis on the fact that the
constitution does not acknowledge a substate UNLESS you amend the
constitution as it is now then it cannot be done. What may be granted is
autonomy and not them establishing a substate.

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