POLITICAL LAW REVIEWER 2012 (Sandoval Notes) Updated and substantiated By: Nadine Baligod for Leviathan (SSCR)
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TABLE OF CONTENTSTHE PHILIPPINE CONSTITUTION ... 5
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GENERAL PRINCIPLES ... 5
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What is the Doctrine of Constitutional Supremacy? ... 5
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→ Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo] ... 5
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CLASSIFICATIONS ... 5
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ESSENTIAL PARTS OF A GOOD WRITTEN CONSTITUTION ... 6
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INTERPRETATION ... 6
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→ Civil Liberties Union vs. Executive Secretary, 194 SCRA 317 ... 6
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→ Francisco vs. HR, G.R. No. 160261, November 10, 2003 ... 6
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What are self-executing and non-self executing provisions of the Constitution? ... 6
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→ Tañada vs. Angara, 272 SCRA 18 [1997] ... 7
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→ Oposa vs. Factoran, 224 SCRA 792, July 30, 1993 ... 7
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→ Manila Prince Hotel vs. GSIS, 267 SCRA 408 [1997] ... 7
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EFFECTS OF DECLARATION OF UNCONSTITUTIONALITY ... 7
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Orthodox vs. Modern View ... 7
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→ Ynot vs. IAC ... 7
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What is the doctrine of operative fact? ... 7
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→ League of Cities vs. COMELEC, GR 176951, August 24, 2010 ... 7
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Partial Unconstitutionality ... 8
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When are acts of persons considered “State action” covered by the Constitution? ... 8
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→ Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo] ... 8
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PREAMBLE ... 8
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AMENDMENTS OR REVISIONS (ARTICLE XVII) ... 8
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Amendment vs. Revision ... 8
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→ Lambino vs. COMELEC, GR 174153, October 25, 2006 ... 8
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Two-part test to determine whether the change is an amendment or a revision ... 9
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TWO STAGES IN AMENDMENTS OR REVISIONS: ... 9
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1. PROPOSAL ... 9
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Modes of proposing Amendments or Revisions: ... 9
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2. RATIFICATION ... 9
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What is the Doctrine of Proper Submission? ... 9
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→ Tolentino v. COMELEC, GR L-34150 [1971] ... 10
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R.A. 6735 (INITIATIVE AND REFERENDUM LAW) ... 10
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People’s Initiative on the Constitution ... 10
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Is Sec. 2 Article XVII self-executing? ... 10
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Additional requirement in obtaining signatures in a People’s Initiative ... 10
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Has Congress already enacted a law to implement People’s Initiative? ... 10
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Can the people now validly exercise People’s Initiative to amend the Constitution? ... 10
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→ Santiago vs. COMELEC [1997] ... 10
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Initiative vs. Referendum ... 10
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THE STATE ... 12
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→ (CIR vs. Campos Rueda, 42 SCRA 23) ... 12
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Distinguish a State from a Nation ... 12
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State vs. Government ... 12
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ELEMENTS OF A STATE ... 12
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Is the Vatican a State? ... 12
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→ The Holy See v. Judge Rosario, Jr. (238 SCRA 524 [1994]) ... 12
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1.
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SOVEREIGNTY ... 12!
Is Sovereignty really absolute? ! ... 12
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→ Tañada vs. Angara, 272 SCRA 18 (1997) ... 13
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Kinds of Sovereignty ... 13
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Sovereignty vs. Dominion ... 13
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→ Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of DENR, G.R. No. 135385, Dec. 6, 2000 ... 13
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Effect of Change of Sovereignty (external) ... 13
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→ Macariola vs. Asuncion, Adm. Case No. 133-J, May 31, 1982 ... 13
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Effect of Belligerent Occupation (internal) ... 13
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Principle of Jus Postliminium ... 13
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→ Peralta vs. Director of Prisons, November 12, 1945 ... 13
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Jurisdiction ... 13
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2. GOVERNMENT ... 13
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De Jure vs. De Facto Government ... 13
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Effect of Revolutionary Government on International Law Obligations ... 14
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→ Republic vs. Sandiganbayan, G.R. No. 104768, July 21, 2003 ... 14
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3. PEOPLE ... 14
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What is the concept of an associated state? ... 14
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→ The Province Of North Cotabato vs. The Government Of The Republic Of The Philippines Peace Panel, G.R. No. 183591, Oct. 14, 2008, En Banc [Carpio-Morales] ... 14
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POLITICAL LAW 1 2012 (Sandoval Notes)Updated and substantiated By: Nadine Baligod for Leviathan (SSCR)!
Is the concept of “association” recognized under the present Constitution? ... 14
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4. TERRITORY ... 14
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ARTICLE I: THE NATIONAL TERRITORY ... 14
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TWO PARTS OF THE NATIONAL TERRITORY ... 14
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Archipelago Doctrine ... 15
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→ Prof. Merlin M. Magallona, Et. Al. V. Hon. Eduardo Ermita, Et. Al., G.R. No. 187167, August 6, 2011 ... 15
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Is the Spratlys Group of Islands part of the Philippine Archipelago? ... 15
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Is the Spratlys group of Islands part of our National Territory? ... 15
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What was the basis of the Philippines’ claim over the Spratlys? ... 15
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MODES OF ACQUIRING TERRITORY ... 16
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Doctrine of Effective Occupation ... 16
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SOME PRINCIPLES IN NATIONAL TERRITORY ... 16
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Thalweg Doctrine ... 16
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Middle of the Bridge Doctrine ... 16
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Bays and Gulfs ... 16
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Straits ... 16
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Canals ... 16
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Archipelagic waters ... 16
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Archipelagic State ... 16
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Straight Archipelagic Baseline ... 16
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Territorial Sea ... 17
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Baseline ... 17
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Contiguous Zone ... 17
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Exclusive Economic Zone ... 17
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Continental shelf ... 17
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High Seas ... 17
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Freedom of navigation ... 17
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Aerial Domain ... 17
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ARTICLE II: DECLARATION OF PRINCIPLES AND STATE POLICIES ... 17
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SEC. 1: DEMOCRATIC AND REPUBLICAN STATE ... 17
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Manifestations of Republicanism ... 17
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“Government of Laws and Not of Men.” ... 17
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→ Villavicencio vs. Lukban, 39 Phil 778 ... 18
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What is a Republican form of government? ... 18
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Characteristics of a republican form of government ... 18
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Presidential vs. Parliamentary ... 18
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Doctrine of Parens Patriae ... 18
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→ Government vs. Monte de Piedad, 35 SCRA 738; Cabañas vs. Pilapil, 58 SCRA 94 ... 18
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ARTICLE XI: What are the characteristics of a public office? ... 18
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Who are the impeachable officers? ... 18
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Grounds for impeachment ... 18
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Who may initiate an impeachment? ... 18
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Who will hear? ... 18
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Can you question the HOR’s finding of probable cause? ... 18
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Tax evation case against the impeached offier – will it constitute double jeopardy? ... 18
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What is the quantum of proof in impeachment proceedings? ... 19
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Executive Privilege on Public Disclosure ... 19
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What is the rule on the exercise of this privilege? ... 19
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SEC. 2: RENUNCIATION OF WAR ... 19
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Two Important concepts ... 19
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Some generally accepted principles of International Law ... 20
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The doctrine of state immunity from suit ... 20
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→ US vs. GUINTO, February 26, 1990 ... 20
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Par in Parem Non Habit Imperio ... 20
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Pacta sunt Servanda ... 20
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→ Tañada vs. Angara, 272 SCRA 18 [1997] ... 20
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The right to self-determination of peoples ... 20
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→ Prov. of North Cotabato, supra ... 20
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The Yokyakarta principles ... 20
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→ Ang Ladlad LGBT Party vs. COMELEC, G.R. NO. 190582, April 8, 2010 ... 20
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SEC. 3: CIVILIAN SUPREMACY ... 20
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→ IBP V. Zamora, G.R. NO. 141284, August 15, 2000 ... 20
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SEC. 16: RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY ... 21
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→ Oposa V. Factoran, Jr., 224 SCRA 792 [1993] ... 21
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SECTION 10, ARTICLE XII: THE “FILIPINO FIRST” POLICY ... 21
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→ Manila Prince Hotel vs. GSIS, 267 SCRA 408 [1997] ... 21
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Is the “Filipino First” Policy expressed in Section 10, Article XII of the Constitution a self-executing provision? ... 21
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What is the “Filipino First” Policy enshrined in the Constitution? ... 21
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What is "NATIONAL PATRIMONY"? ... 21
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SECTION 5, ARTICLE XIV: ACADEMIC FREEDOM ... 22
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Define and discuss the academic freedom of institutions of higher learning. ... 22
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POLITICAL LAW 1 2012 (Sandoval Notes) Updated and substantiated By: Nadine Baligod for Leviathan (SSCR)
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How should the State’s power to regulate educational institutions be exercised? ... 22
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→ Miriam College Foundation, Inc. vs. CA, 348 SCRA 265 (2000) ... 22
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What are the essential freedoms subsumed in the term “academic freedom”? ... 22
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→ Isabelo, Jr. vs. Perpetual Help College Of Rizal, Inc., 227 SCRA 595-597, Nov. 8, 1993 ... 22
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Where do academic institutions derive their freedom to DISCIPLINE the students? ... 22
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May a University validly revoke after graduation, a degree or honor it has already conferred to a student after finding that such degree or honor was obtained through fraud? ... 23
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→ UP Board of Regents v. Hon. Court of Appeals and Arokiaswamy William Margaret Celine, G.R. No. 134625, Aug. 31, 1999, 2nd Div. [Mendoza] ... 23
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THE DOCTRINE OF STATE IMMUNITY FROM SUIT ... 23
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I. Suits against the STATE itself ... 23
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→ Department Of Agriculture vs. NLRC, 227 SCRA 693, Nov. 11, 1993 ... 23
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Waiver of State Immunity: Express or Implied ... 23
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Is “Implied waiver of immunity” absolute? ... 23
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What is the Restrictive Doctrine of State Immunity from Suit? ... 23
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→ United States of America v. Ruiz (136 SCRA 487) ... 23
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Jure Imperii vs Jure Gestionis ... 24
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→ Holy See vs. Rosario, GR 101949, December 1, 1994 ... 24
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Suability vs. Liability ... 24
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→ (Philippine Rock Industries, Inc. v. Board of Liquidators, G.R. 84992, December 15, 1989) ... 24
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In the matter of execution to satisfy judgment against the State ... 24
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→Traders Royal Bank v. IAC, GR 68514, December 17, 1990 ... 24
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→ City of Caloocan v. Allarde, GR 107271, September 10, 2003 ... 24
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Can a property owner sue the government for non-payment of just compensation in an Expropriation? ... 24
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II. Suits against AGENCIES of the Government ... 24
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III. Suits against GOVERNMENT OFFICIALS ... 25
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When is a suit against a Government officer deemed to be a suit against the State? ... 25
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→ Amado J. Lansang vs. CA, G.R. NO. 102667, FEB. 23, 2000, [QUISUMBING] ... 25
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State instances when a suit against the State is proper ... 25
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→ Republic v. Sandoval, 220 SCRA 124, March 19, 1993, En Banc [Campos, Jr.]) ... 25
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The doctrine cannot be used to perpetrate an injustice on a citizen ... 26
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→ EPG Construction Co. v. Vigilar, 354 SCRA 566, Mar.16, 2001, 2nd Div. [Buena] ... 26
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ARTICLE IV. CITIZENSHIP ... 26
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What citizenship principle do the Philippines adhere to? ... 26
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→ Valles v. COMELEC, 337 SCRA 543, Aug. 9, 2000, En Banc [Purisima] ... 26
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SEC. 1. THE FOLLOWING ARE THE CITIZENS OF THE PHILIPPINES: ... 26
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1. Those who are citizens of the Philippines at the time of the adoption of this Constitution ... 26
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2. Those whose fathers or mothers are citizens of the Philippines ... 27
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3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority ... 27
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Until when should a legitimate child born under the 1935 Constitution of a Filipino mother and an alien father validly elect Philippine citizenship? ... 27
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→ In Re: Application for Admission to the Philippine Bar, Vicente D. Ching, Bar Matter No. 914 ... 27
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Will it make a difference if Ching’s parents were not married? ... 27
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The 1935 Constitution was the governing law, where it provided that those whose fathers are citizens of the Philippines, whether they be legitimate or not, are citizens of the Philippines. ... 27
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→ Tecson vs. Comelec ... 27
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4. Those who are naturalized in accordance with law ... 27
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→ So vs. Republic, January 29, 2007 ... 27
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Under current and existing laws, what are the ways by which an ALIEN may become a citizen of the Philippines by naturalization? ... 28
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Qualifications ... 28
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Disqualifications ... 28
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SEC. 2. NATURAL-BORN CITIZENS ... 28
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→ Antonio Bengzon III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan] ... 28
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2 ways of acquiring citizenship: ... 28
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2 kinds of citizens ... 28
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SEC. 3. REACQUISITION OF CITIZENSHIP ... 29
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(1) Naturalization ... 29
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Requisites for application of res judicata doctrine in cases of citizenship: ... 29
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(2) Repatriation ... 29
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Who may validly avail of repatriation under R.A. No. 8171? ... 29
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→ Gerardo Angat v. Republic, G.R. No. 132244, Sept. 14, 1999 [Vitug] ... 29
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Before what agency should application for repatriation under R.A 8171 be filed? ... 29
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Does repatriation qualify a citizen to run for Congress? ... 29
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(3) By direct act of Congress ... 29
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SECTION 4. CITIZENS OF THE PHILIPPINES WHO MARRY ALIENS ... 29
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Citizens under the 1935 Constitution ... 30
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→ Ye vs. Director of Public Schools ... 30
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In order that citizenship may be lost by renunciation, such renunciation must be express. ... 30
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→ Aznar v. COMELEC ... 30
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→ Mercado v. Manzano and COMELEC ... 30
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→ Co vs. HRET ... 30
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POLITICAL LAW 1 2012 (Sandoval Notes)Updated and substantiated By: Nadine Baligod for Leviathan (SSCR)!
R.A 9225 – Citizenship Retention and Reacquisition Act of 2003 (Dual Citizenship Law) ... 30
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RE-ACQUISITION ... 30
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Will he be allowed to run for an elective (or appointive) office? ... 30
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→ NEW JURISPRUDENCE: Sobejana-Condon vs. COMELEC, GR 198742, August 10, 2012 ... 30
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DERIVATIVE CITIZENSHIP ... 30
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Distinguish dual citizenship from dual allegiance and state what really is prohibited by the Constitution. ... 30
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→ Mercado v. Manzano, 307 SCRA 630, May 26, 1999, En Banc [Mendoza] ... 30
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Instances when a citizen of the Philippines may possess dual citizenship ... 31
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STRUCTURE OF GOVERNMENT ... 31
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Doctrine of Separation of Powers ... 31
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Principle of Checks and Balances ... 31
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DELEGATION OF POWERS ... 31
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“Potestas delegate non delegani potest” ... 31
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Exceptions: P-E-T-A-L ... 31
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1. Delegation to the people through initiative and referendum (Sec. 1 Art. VI) ... 31
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2. Emergency power to the President – Sec. 23 2nd par of Art. VI ... 31
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3. Tariff powers to the president – Sec. 28 2nd par. Art. 6 ... 31
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4. Administrative agencies ... 31
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5. Local Government ... 32
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What are the tests of a valid delegation of power? ... 32
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ART. VI. THE LEGISLATIVE DEPARTMENT ... 32
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ART. VII. THE EXECUTIVE DEPARTMENT ... 44
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ART. VIII. THE JUDICIAL DEPARTMENT ... 59
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THE CONSTITUTIONAL COMMISSIONS ... 70
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POLITICAL LAW 1 2012 (Sandoval Notes) Updated and substantiated By: Nadine Baligod for Leviathan (SSCR)
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POLITICAL(LAW(1!
What is political law?
That branch of public law, which deals with the organization and operations of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory.
SCOPE/DIVISIONS OF POLITICAL LAW
1) Constitutional Law—the study of the maintenance of the proper balance between authority, as represented by the three inherent powers of the state, and liberty as guaranteed by the Bill of Rights.
2) Administrative Law-- That branch of public law which fixes the organization, determines the competence of administrative authorities who execute the law, and indicates to the individual remedies for the violation of his right.
3) Law on Municipal Corporations 4) Law of Public Officers
5) Elections Law Basis:
1) 1987 Constitution
2) 1973 and 1935 Constitutions
3) Organic laws made to apply to the Philippines— a) Philippine Bill of 1902
b) Jones Law of 1916
c) Tydings-McDuffie Law of 1934
4) Statutes, executive orders and decrees, and judicial decisions 5) US Constitution
Constitution Statute
Legislation directly from the people Legislation from the people’s representative; States general principles; Provides the details of the subject matter of
which it treats; Intended not merely to meet existing
conditions;
Intended primarily to meet existing conditions only;
The fundamental law of the State Must conform with the Constitution
!
THE!PHILIPPINE!CONSTITUTION!
GENERAL!PRINCIPLES!
It is the document, which serves as the fundamental law of the State; that body of rules and maxims in accordance with which the power of sovereignty are habitually exercised.
That written instrument enacted by direct action of the people by which the fundamental powers of the government are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic.
It is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer. No act shall be valid, no matter how noble its intention, if it conflicts with the Constitution. The Constitution must ever remain supreme. All must bow to the mandate of this law. Right or wrong, the Constitution must be upheld as long as the sovereign people have not changed it.
What is the Doctrine of Constitutional Supremacy?
Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the Constitution, that law or contract, whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes, is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract.
→ Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo]
CLASSIFICATIONS!
1. Written or unwritten
Written Unwritten
One whose precepts are embodied in one document or set of documents.
Consists of rules which have not been integrated into a single, concrete form but are scattered in various sources.
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POLITICAL LAW 1 2012 (Sandoval Notes)Updated and substantiated By: Nadine Baligod for Leviathan (SSCR)! Examples:
a. statutes of fundamental character; b. judicial decisions;
c. commentaries of publicists; d. customs and traditions; e. certain common law principles 2. Conventional (Enacted) or Cumulative (Evolved)
Conventional (Enacted) Cumulative (Evolved)
Formally struck off at a definite time and place following a conscious or deliberate effort taken by a constituent body or ruler.
The result of a political evolution, not inaugurated at any specific time but changing by accretion rather than by any systematic method
3. Rigid or Flexible
Rigid Flexible
Can be amended only by a formal and
usually difficult process. Can be changed by ordinary legislation.
The Philippine Constitution is written, conventional and rigid. It is embodied in one document and can be amended only by a formal and usually difficult process.
ESSENTIAL!PARTS!OF!A!GOOD!WRITTEN!CONSTITUTION
a) Constitution of Liberty - sets forth the fundamental civil and political rights of the citizens (e.g. Bill of Rights) and imposes limitations on the powers of the government as a means of securing the enjoyment of those rights (e.g. limitations on the arrest of a person, eminent domain)
b) Constitution of Government - outlines the organization of the government, enumerates its powers, lays down certain rules relative to its administration and defines the electorate. (e.g. Legislative, Executive and Judicial Departments, Constitutional Commissions)
c) Constitution of Sovereignty - the provisions pointing out the mode or procedure in accordance with which formal changes (initiative for amendments to the constitution) in the fundamental law may be brought about. (e.g. Art. XVII-Amendments or Revisions)
Essential Qualities of a Written Constitution 1) Broad;
2) Brief; and 3) Definite.
INTERPRETATION
1) Verba Legis—whenever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed.
2) When there is Ambiguity—ratio legis et anima--A doubtful provision shall be examined in the light of the history of the times and the conditions and circumstances under which the Constitution was framed.
→ Civil Liberties Union vs. Executive Secretary, 194 SCRA 317
3) Ut magis valeat quam pereat—the Constitution has to be interpreted as a whole.
→ Francisco vs. HR, G.R. No. 160261, November 10, 2003
If the plain meaning of the word is not found to be clear, resort to other aids is available— construe the Constitution from what “appears upon its face”. The proper interpretation, therefore, depends more on how it was understood by the people adopting it than in the framers’ understanding thereof.
!In case of doubt, the provision should be considered as self-executing; mandatory rather than directory; and prospective rather than retroactive.
2 Kinds of Provisions:
What are self-executing and non-self executing provisions of the Constitution?
A provision which lays down a general principle, such as those found in Article II of the 1987 Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies [a] sufficient rule by means of which the right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the Constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action. (Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo])
1) Self-executing - Bill of Rights [Art III] - complete in itself, without need for further legislation to make it enforceable; One which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies a sufficient rule by means of which the right it grants may be enjoyed or protected.
POLITICAL LAW 1 2012 (Sandoval Notes) Updated and substantiated By: Nadine Baligod for Leviathan (SSCR)
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→ Tañada vs. Angara, 272 SCRA 18 [1997] Gist: Why is Article II non-self-executing?
“By its very title, Article II of the Constitution is a “declaration of principles and state policies.” The counterpart of this article in the 1935 Constitutionis called the “basic political creed of the nation” by Dean Vicente Sinco. These principles in Article II are not intended to be self-executing principles ready for enforcement through the courts. They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws. As held in the leading case of Kilosbayan, Incorporated vs. Morato, the principles and state policies enumerated in Article II and some sections of Article XII are not “self-executing provisions, the disregard of which can give rise to a cause of action in the courts. They do not embody judicially enforceable constitutional rights but guidelines for legislation.”
NB: EXCEPT: Sec 16 - this speaks of a RIGHT even if it is not found in the Bill of Rights Because sec 16 is a basic right which belongs to a different category of rights - concerns nothing less than self- preservation; it is a basic right it need not even be written in a constitution. It is assumed (note: bill of rights: civil & political) See case below: Oposa v. Factoran, Jr.
→ Oposa vs. Factoran, 224 SCRA 792, July 30, 1993
Gist: By way of exception for Article II, Sec. 2 is SELF-EXECUTING
“While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation — aptly and fittingly stressed by the petitioners — the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come — generations which stand to inherit nothing but parched earth incapable of sustaining life.”
NB Separate concurring opinion of Jusice Feliciano: “As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. Xxx”
→ Manila Prince Hotel vs. GSIS, 267 SCRA 408 [1997]
Gist: Are provisions of the Constitution self-executing or non-self executing? Why?
“Unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions are self-executing. If the constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law. This can be cataclysmic. Xxx
“Unless the contrary is clearly intended, the provisions of the Constitution should be considered self- executing, as a contrary rule would give the legislature discretion to determine when, or whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking body, which could make them entirely meaningless by simply refusing to pass the needed implementing statute.
Atty. Sandoval: Otherwise the Constitution will be captive of Congress ex: law on political dynasty
EFFECTS!OF!DECLARATION!OF!UNCONSTITUTIONALITY!
Orthodox vs. Modern View
→ Ynot vs. IAC
• Orthodox View - An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords !no protection; it creates no office; it is inoperative, as if it had not been passed at all. • Modern View - Courts simply refuse to recognize the law and determine the rights of the parties
as if the statute had no existence. Certain legal effects of the statute prior to its declaration of unconstitutionality may be recognized. Thus, a public officer who implemented an unconstitutional law prior to the declaration of unconstitutionality cannot be held liable.
!NB: The Modern view recognizes the Doctrine of Operative Fact.
What is the doctrine of operative fact?
→ League of Cities vs. COMELEC, GR 176951, August 24, 2010
The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration. Xxx The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Xxx Under the operative fact doctrine, the unconstitutional law remains unconstitutional, but the effects of the unconstitutional law, prior to its
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POLITICAL LAW 1 2012 (Sandoval Notes)Updated and substantiated By: Nadine Baligod for Leviathan (SSCR)!
judicial declaration of nullity, may be left undisturbed as a matter of equity and fair play. In short, the operative fact doctrine affects or modifies only the effects of the unconstitutional law, not the unconstitutional law itself.
NB: Atty Sandoval: This also applies to Judicial Decisions. Partial Unconstitutionality
a) The legislature must be willing to retain the valid portion(s), usually shown by the presence of a separability !clause in the law—INTENT OF THE LEGISLATIVE; and
b) The valid portion can stand independently as law—INDEPENDENCE OF THE PROVISIONS. When are acts of persons considered “State action” covered by the Constitution?
In constitutional jurisprudence, the act of persons distinct from the government are considered “state action” covered by the Constitution when:
(1) The activity it engages in is a “public function”
(2) The government is so significantly involved with the private actor as to make the government responsible for his action; and
(3) The government has approved or authorized the action.
→ Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo]
PREAMBLE
The Preamble is not a source of power or right for any department of government. It sets down the origin, scope, and purpose of the Constitution. It bears witness to the fact that the Constitution is the manifestation of the sovereign will of the Filipino people.
The identification of the Filipino people as the author of the constitution calls attention to an important principle: that the document is not just the work of representatives of the people but of the people themselves who put their mark of approval by ratifying it in a plebiscite.
1) It does not confer rights nor impose duties.
Indicates authorship of the Constitution; enumerates the primary aims and aspirations of the framers; and serves as an aid in the construction of the Constitution.
AMENDMENTS!OR!REVISIONS!(ARTICLE)XVII))
→ NB: This is the Constitution of Sovereignty
Amendment vs. Revision
→ Lambino vs. COMELEC, GR 174153, October 25, 2006 Amendments
• Broadly refer to a change that adds, reduces, or deletes without altering the basic principle involved. (piece-meal or isolated changes or additions that would not drastically affect the fundamental laws. e.g. Change in the voting requirement)
• Generally affects only the specific provision being amended. Revision
• Boadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances.
• There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. (ex: A change from Presidential to Parliamentary, since it would result to combination of legislative and executive.) • A revision generally affects several provisions of the constitution.
ARTICLE XVII
Section 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention.
Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
Section 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention. Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision.
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Two-part test to determine whether the change is an amendment or a revisionQUANTITATIVE - asks whether the proposed change is "so extensive in its provisions as to change directly the 'substantial entirety' of the constitution by the deletion or alteration of numerous existing provisions. The court examines only the number of provisions affected and does not consider the degree of the change. (NB: on how many provisions will be changed)
QUALITATIVE - inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will accomplish such far-reaching changes in the nature of our basic governmental plan as to amount to a revision.
Two!stages!in!Amendments!or!Revisions:
1.!PROPOSAL
Modes of proposing Amendments or Revisions: 1) Constitutional Assembly (ConAss) – 3/4
2) Consitutional Convention (ConCon) – 2/3 or Majority + Plebiscite
3) People’s Initiative – 12% + 3% plebiscite + full text of the proposed amendments attached (may be exercised for amendments only for the Constitution)
1. Constituent Assembly (ConAss)
2. Constitutional Convention
(ConCon) 3. People’s Initiative
By Whom Congress acting as a Constituent Assembly
Congress or the electorate calls or decides to call for a Constitutional Convention (NB: ConCon is like the ConCom which drafted the 1987 Constitution. The members of the ConCon may not be members of Congress; ex: Fr. Bernas used to be a member of ConCom)
The people
How
Voting – ALL members of congress
(NB: Atty. Sandoval: “ALL” = 3/4 HOR + 3/4 Senate)
2 ways:
1. Voting – 2/3 of ALL of Congress to call for a ConCon
2. Voting - Majority of ALL of Congress to submit to electorate the question of calling a ConCon + Plebiscite Petition thru a Plebiscite Voting Requirements 3/4 1. 2/3 2. Majority + Plebiscite 12% of ALL registered voters in Phils. + 3% of ALL registered voters for every Legislative District + Full text of the proposed
amendments attached in the petition (Lambino vs. COMELEC, supra; see below)
Limitation as to when exercised
May only be exercised once every 5 years. Coverage Amendment or Revision Amendment or Revision Amendment ONLY
Political Questions
The SUBSTANCE of the proposal made by the ConAss
Whether ConAss or ConCon should initiate the amendment or revision
Legal Question (Reviewable by the Courts)
1. Manner of making Proposal/
2. Manner of calling the ConCon (This is a case where Congress as a ConAss calls for a ConCon but does not provide details for calling such, and Congress, exercising its ordinary legislative power supplies such details)
→ Because the Constitution has provided for its requirements
The court can declare a proposition null and void for:
1) Violation of the !Constitution; 2) Want of capacity
of !the LLB to enact the said measure (Sec. 18, R.A. 6735)
2.!RATIFICATION!
→ This is made through a plebiscite called for that purpose. What is the Doctrine of Proper Submission?
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28196, [1967]), provided the people are sufficiently informed of the amendments to be voted upon, to conscientiously deliberate thereon, to express their will in a genuine manner. Submission of piece-meal amendments is unconstitutional. All amendments must be submitted for ratification at one plebiscite only. The people have to be given a proper frame of reference in arriving at their decision.
→ Tolentino v. COMELEC, GR L-34150 [1971]
R.A.!6735!(Initiative!and!Referendum!Law)!
→ Implementing Sec 32 Article VI of the Costitution People’s Initiative on the ConstitutionIs Sec. 2 Article XVII self-executing?
A: NO. Sec. 32 of Article VI also provides that “The Congress shall as early as possible provide for a system of initiative and referendum xxx.” In other words, the mandate for Congress to enact the so-called initiative and referendum law is found in Sec. 32 Art. VI of the Constitution and because of this, the reservation (on Congress’s legislative power in favor of the people) is not self-executing.
Additional requirement in obtaining signatures in a People’s Initiative
Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the full text of the proposed amendments. [NB: in this case, the proponents tried to initiate an amendment on the terms of office of some elected positions] However, the deliberations of the framers of our Constitution clearly show that the framers intended to adopt the relevant American jurisprudence on people's initiative. In particular, the deliberations of the Constitutional Commission explicitly reveal that the framers intended that the people must first see the full text of the proposed amendments before they sign, and that the people must sign on a petition containing such full text. (Lambino vs. COMELEC, supra)
NB: This requirement also applies in case of RATIFICATION (see Tolentino case below) Has Congress already enacted a law to implement People’s Initiative?
A: YES – R.A. 6735. As provided in par. 2 thereof, Sec 2, Article XVII is a non self-executing provision.
Can the people now validly exercise People’s Initiative to amend the Constitution? Ans: NO
→ Santiago vs. COMELEC [1997]
RA 6735 is inadequate to cover the system of initiative to amend the constitution because while Sec. 3 mentions initiative on the Constitution and Sec. 5 restates the constitutional requirements as to the percentage of registered voters needed for a proposal, the law does not provide for the contents of a petition for initiative on the Constitution; while there are subtitles for national and local initiatives, there is no subtitle for the initiative on the Constitution; thus, the law is incomplete, and this inadequacy cannot be cured by empowering the COMELEC to promulgate implementing rules and regulations.
A revision [needless to say] cannot be done by initiative, which, by express provision of Section 2 of Article XVII of the Constitution, is limited to amendments.
Initiative vs. Referendum
INITIATIVE “initiate” REFERENDUM “referred to”
Definition (Sec. 3)
The power of the people to propose amendments to the Constitution or
propose or enact legislation 1. Directly
2. Indirectly
The power of the electorate to approve or reject legislation through en election called for that
purpose.
(NB: this is optional on the part of the Legislative Body which may make enactments even without the ratification by the people, subject of course to rejection by people’s Initiative)
Applicability to the Constitution:
1. Amendment 2. Revision
YES – But no complete procedure yet NO – Sec. 2 Art XVII only explicitly provided for “amendments” by the people.
YES - Same as “RATIFICATION”
Subject matter and Requirements (Sec. 5)
DIRECT Initiative may be: 1. On the Constitution
→ 12% + 3% per Leg. District (LD) → [NB: still inoperative]
2. On Statutes
→ 10% + 3% per LD 3. On Local Legislation
→ 10% + 3% per LD
→ 10% for Barangay ordinances
1) On the Constitution → “known as ratification” under Sec. 4 Art. XVII.
→ Majority of all registered voters
→ held not less than 60 days nor more than 90 days from approva of such
amendment/revision
2) On Statutes → 10% + 3% per LD
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INITIATIVE “initiate” REFERENDUM “referred to”→ 10% + 3% per LD
According to manner of exercise
1. INDIRECT Initiative (Sec. 11) – by any duly accredited people’s organization as defined by law through proposition sent to HOR or the Local legislative Body
→ PROCEDURE: the same as the
enactment of any legislative measure before the HOR (but with priority than other pending bills on the committee)
2. DIRECT Initiative (Sec. 13) – through a petition filed by the people with COMELEC
→ PROCEDURE (NB: This applies to Initiative on statutes and local legislation only; no procedure yet for amendments on the Constitution);
I. PROPOSAL!
The registered voters with the following count shall make a proposition: • Autonomous region – 2000 • Provinces/Cities – 1000 • Municipalities – 100 • Barangays – 50 → Where to file?
• The local legislative body (LLB) (i.e. Reg. Assembly of Board Members/Sanggunian/Brgy. Kagawad)
II. INITIATIVE!
• If no favorable action is made by the LLB concerned after 30 days from the presentation of the proposed enactment; or! • For those who are against the
proposition adopted by the LLB III. SIGNATURE CAMPAIGN – within a
limited period under Sec. 13(e). IV. RATIFICATION - PLEBISCITE if
COMELEC finds signatures sufficient. → majority vote of all reg. voters V. EFFECTIVITY – 15 days after
certification by the COMELEC that the required votes have been met (local) or after its publication in the OG or NNC (national – but if against an enactment by the Congress and no majority vote garnered, national law will remain effective)
Plebiscite
EFFECTIVITY – 15 days after certification by the COMELEC that the required votes have been met (local) or after its publication in the OG or NNC (national)
Prohibitions applicable to both Initiative & Referendum
1. Petition submitted to the electorate should not embrace more than 1 subject (Sec. 10a)
2. Any proposition approved through I & R shall NOT be repealed, modified or amended by the LLB concerned within 6 months.
3. May be amended, modified, repealed within 3 years (1 year for barangay) from lapse of the 6-month period by a vote of 3⁄4 of all members of LLB (Sec. 16)
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NB: Sec. 12. Appeal. A decision of the COMELEC on the findings of the sufficiency or insufficiency of the petition for Initiative or referendum may be appealed to the SC within 30 days from notice thereof.
THE!STATE
A STATE is a community of persons, more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing a government to which a great body of inhabitants render habitual obedience.
→ (CIR vs. Campos Rueda, 42 SCRA 23) Distinguish a State from a Nation
State is a legal or juristic concept while a Nation is an ethnic or racial concept. State vs. Government
A State possesses a government to which a great body of inhabitants render habitual obedience while a Government is merely an instrumentality of the State through which the will of the State is implemented and realized.
Elements!of!a!State
1) Sovereignty → the right to exercise the functions of a State to the exclusion of any other State. 2) Government → the agency or instrumentality through which the will of the State is formulated,
expressed and realized.
3) People → the inhabitants of the State; the number of which is capable of sufficiency and self-defense; of both !sexes for perpetuity. a) Inhabitants; b) Citizens; c) Electors.
4) Territory → a fixed portion of the surface of the earth inhabited by the people of the State. Is the Vatican a State?
→ The Holy See v. Judge Rosario, Jr. (238 SCRA 524 [1994]) A: YES.
The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field of international relations."
The Vatican City fits into none of the established categories of states, and the attribution to it of "sovereignty" must be made in a sense different from that in which it is applied to other states. In a community of national states, the Vatican City represents an entity organized not for political but for ecclesiastical purposes and international objects. Despite its size and object, the Vatican City has an independent government of its own, with the Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in conformity with its traditions, and the demands of its mission in the world. Indeed, the worldwide interests and activities of the Vatican City are such as to make it in a sense an "international state". xxx
Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See that is the international person.
The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government since 1957. This appears to be the universal practice in international relations. (Citations ommitted)
1. Sovereignty!
Is Sovereignty really absolute? !
While sovereignty has traditionally been deemed absolute and all encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly Limitations
• on the Constitution:
→ once every 5 years only
(Sec. 2 Art. XVII Constitution) • on Statutes:
→ NO LIMITATION
(i.e. any subject, anytime)
• on LOCAL Legislation: 1) Not more than once a year 2) Ony to subject matters within the
power of the LLB to enact; 3) Initiative shall be cancelled if the
LLB decides to adopt in toto the said proposition (but initiative may be made against said proposition) (Sec. 15)
Statutes involving emergency measures, the enactment of which are specifically vested in Congress by the Constitution cannot be the subject of Referendum – until 90 days after its effectivity.
(NB: after 90 days → allowed i.e. the
people can approve/reject the same;)
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or impliedly, as a member of the family of nations. In its Declaration of Principles and State Policies, theConstitution adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with all nations. By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws.
→ Tañada vs. Angara, 272 SCRA 18 (1997)
“The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture:
(1) limitations imposed by the very nature of membership in the family of nations and (2) limitations imposed by treaty stipulations.”
Kinds of Sovereignty
a) Legal—the power to issue final commands;
b) Political—the sum total of all the influences which lie behind the law; c) Internal—the supreme power over everything within its territory;
d) External—also known as independence—freedom from external control. Sovereignty vs. Dominion
Sovereignty is the right to exercise the functions of a State to the exclusion of any other State. It is often referred to as the power of imperium, which is defined as the government authority possessed by the State (it includes passing laws governing a territory, maintaining peace and order over it, and defending it against foreign invasion).
On the other hand, dominion, or dominium, is the capacity of the State to own or acquire property such as lands and natural resources.
→ Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of DENR, G.R. No. 135385, Dec. 6, 2000 Effect of Change of Sovereignty (external)
→ Political laws of the former sovereign are abrogated unless they are expressly reenacted by the affirmative act of the new sovereign. Municipal laws remain in force.
→ Macariola vs. Asuncion, Adm. Case No. 133-J, May 31, 1982 Effect of Belligerent Occupation (internal)
→ There is no change in sovereignty. However, political laws, except those of treason, are suspended [NB: not abrogated as in change in sovereignty by an external force]; municipal laws remain in force unless changed by the belligerent occupant.
NB: Conditions of Belligerency (PIL): C-O-W-S
1) An organized Civil government that has control and direction over the armed struggle launched by the rebels;
2) Occupation of a substantial portion of the national territory;
3) Seriousness of the struggle, which must be so widespread thereby leaving no doubt as to the outcome;
4) Willingness on the part of the rebels to observe the rules and customs of war. Principle of Jus Postliminium
→ At the end of the occupation, when the occupant is ousted from the territory, the political laws, which
have been suspended, shall automatically become effective again.
→ Peralta vs. Director of Prisons, November 12, 1945 Jurisdiction
→ The manifestation of sovereignty
a) Territorial - power of the State over persons and things within its territory subject to its control and !protection.
b) Personal - power of the State over its nationals, which may be exercised by the state even if the !individual is outside the territory of the State. (e.g. Art. 15 of the Civil Code)
c) Extraterritorial (Exterritoriality) - power of the State over persons, things or acts beyond its territorial limits by reason !of their effects to its territory. (e.g. Embassies)
2.!Government!
De Jure vs. De Facto Government
→ classification of Government on the basis of legitimacy.
De Jure has a rightful title but no power or control, either because the same has been withdrawn from it or because it has not yet actually entered into the exercise thereof while a De Facto Actually exercises the power or control but without legal title.
The kinds of de facto governments are:
a) De Facto Proper. Government that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter;
b) Government of Paramount Forces. Established and maintained by the military forces who invade and occupy a territory of the enemy in the course of war;
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Effect of Revolutionary Government on International Law Obligations
→ It is bound by no constitution. However, it did not repudiate the Covenant or Declaration in the same way it repudiated the Constitution. As the de jure government, the revolutionary government could not escape responsibility for the State’s good faith compliance with its treaty obligations under international law. During the interregnum when no constitution or Bill of Rights existed, directives and orders issued by government officers did not exceed the authority granted them by the revolutionary government. The directives or orders should not have also violated the Covenant or the Declaration.
→ Republic vs. Sandiganbayan, G.R. No. 104768, July 21, 2003
3.!People!
What is the concept of an associated state?
→ The Province Of North Cotabato vs. The Government Of The Republic Of The Philippines Peace Panel, G.R. No. 183591, Oct. 14, 2008, En Banc [Carpio-Morales]
NB: June 2012 Midterm exam essay
An association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. Examples of states which maintain an associated state relationship with the United States are the newly-formed states of Micronesia and the Marshall Islands in the Pacific, among others.
In US constitutional and international practice, free association is understood as an international association between sovereigns. The Compact of Free Association is a treaty which is subordinate to the associated nation’s national constitution, and each party may terminate the association consistent with the right of independence. It has been said that, with the admission of the US-associated states to the UN in 1990, the UN recognized that the American model of free association is actually based on an underlying status of independence.
In international practice, the “associated state” arrangement has usually been used as a transitional device of former colonies on their way to full independence. Examples of states that have passed through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states.
Is the concept of “association” recognized under the present Constitution?
No. The 1987 Constitution provides that no province, city, or municipality, not even the ARMM, is recognized under our laws as having an “associative” relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence.
It is for the above reason that the SC declared unconstitutional the proposed Memorandum of Agreement on Ancestral Domain (MOA-AD) about to be signed between the Government of the Republic of the Philippines and the Moro Islamic Liberation Front (MILF) because had the signing pushed through, in effect, we would have allowed the creation of the Bangsamoro Juridical Entity (BJE) in Mindanao as an associated state (which is merely a transitional phase to it attaining full independence later.) In the words of the SC in the above case, “[T]he BJE (Bangsamoro Juridical Entity) is a far more powerful entity than the autonomous region recognized in the Constitution. (supra)
4.!Territory!
!ARTICLE!I:!The!National!Territory!
Two!Parts!of!the!National!Territory
1) The Philippine archipelago with all the islands and waters embraced therein; and 2) All other territories over which the Philippines has sovereignty or jurisdiction.
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 o their breadth and dimensions, form part of the internal waters of the Philippines.
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Archipelago Doctrine→ Prof. Merlin M. Magallona, Et. Al. V. Hon. Eduardo Ermita, Et. Al., G.R. No. 187167, August 6, 2011 This merely emphasizes the unity of lands and waters. It is a body of waters interconnected with other natural features. Under the United Nation Convention on the Law of Sea (UNCLOS), it consists of drawing imaginary baseline connecting the outermost islands of the archipelago in which all internal waters and islands are considered as one integrated whole. An archipelago is defined as a group of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and natural features form an intrinsic geographical, economical and political entity, or which historically been regarded as such.
Correlate this doctrine to the right of innocent of passage, right of arrival under stress and UNCLOS requiring the designation of archipelagic seaways so that foreign vessels may pas through an archipelago.
“xxx 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.” This second sentence of Article I is not the Archipelago Doctrine. This is only our restatement/reaffirmation of our adherence to the Archipelago Doctrine simply because we are an archipelago consisting of 7,107 islands. It is essential for our national survival that we adhere to the archipelago principle.
Is the Spratlys Group of Islands part of the Philippine Archipelago? A: NO!
Spratlys Group of Islands [a.k.a “Kalayaan Island Group” or KIG] is not part of the Philippine Archipelago because it is too far away from the three main islands of the Philippines. It is found, geographically, almost in the middle of the South China Sea. Historically, when we talk about the Philippine Archipelago, we refer to those islands and waters that were ceded by the Spain to the United States by virtue of theTreaty of Paris in 1898, and that did not include the Spratlys Group of Islands yet. Under the treaty, the islands that were ceded by Spain were identified—the main islands—Luzon, Visayas and Mindanao. Clearly, it did not include the Spratlys Group of Islands.
Spratlys Group of Islands was only discovered sometime in the 1950’s by a Filipino, Tomas Cloma. The latter waived his rights over the islands in favor of the Philippine Government. In effect, the government stepped into the shoes of the discoverer. What then President Marcos did the moment Tomas Cloma waived his rights over the Spratlys Group of Islands, is to have the islands immediately occupied by Philippine troops. He then issued PD 1596, constituting the Spratlys Group of Islands as a regular municipality claiming it the Municipality of Kalayaan placing it under the Province of Palawan, and then he had the elections immediately held in the islands so from that time on until now, we continue to hold elections there. The Philippine exercises not only jurisdiction but also sovereignty over the Spratlys Group of Islands, yet it is not part of the Philippine Archipelago. Geographically, it is too far away from the Philippine Archipelago.
On May 20, 1980, the Philippines registered its claim with the UN Secretariat.The Philippine claim to the islands is justified by reason of history, indispensable need, and effective occupation and control. Thus, in accordance with international law, the Spratlys Group of islands is subject to the sovereignty of the Philippines.
Is the Spratlys group of Islands part of our National Territory? A: YES.
The Spratlys Group of islands falls under the second phrase of Article I of the Philippine Constitution “and all other territories over which the Philippines has sovereignty or jurisdiction”. It is part of our national territory because the Philippines exercise sovereignty (through the election of public officials) over Spratlys Group of Islands.
What was the basis of the Philippines’ claim over the Spratlys?
A: Through the discovery of Tomas Cloma and by an effective occupation. (Prof. Magallona, supra) PD 1596, June 11, 1978 constituting the Spratly’s Group of Islands as a regular municipality claiming it the Municipality of Kalayaan, placing it under the Province of Palawan.
(1) RA 9522's Use of the Framework of “Regime of Islands” to Determine the Maritime Zones of the KIG and the Scarborough Shoal - not Inconsistent with the Philippines' Claim of Sovereignty Over these Areas.
Further, petitioners' argument that the KIG now lies outside Philippine territory because the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the Philippines' continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago." Second, Article 47 (2) of UNCLOS III requires that "the length of the baselines shall not exceed 100 nautical miles," save for three per cent (3%) of the total number of baselines, which can reach up to 125 nautical miles.
