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ART. I. THE NATIONAL TERRITORY
Section 1. 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.
< Constitution municipal law binding only within the territorial limits of the sovereignty
< BASELINE METHOD:
1) Normal- the breadth of the territorial sea is measured from the low water-line, following the indentations of the coast
2) Straight- drawn as straight lines connecting appropriate points on the coast, without departing to any appreciable extent from the general direction of the coast
Internal Waters – ABSOLUTE SOVEREIGNTY. Waters around, between and connecting the islands of the Phil. Archipelago, regardless of their breadth and dimensions, including the waters in bays, rivers and lakes. No right of innocent passage for foreign vessels exists. Also known as waters on the landward side of baselines from which the breadth of the territorial sea is calculated. Territorial Sea – [12 n.m.] an adjacent belt of sea with a breadth of 12 nautical miles measured from the baselines of a state and over which the state has sovereignty. Ships of all states enjoy right of innocent passage.
Right of Innocent Passage: 1. International Straits (see
Corfu channel case) 2. Territorial Sea – NO air
passage for aircraft generally allowed 3. Archipelagic Waters – air
passage allowed Contiguous zone – [24 n.m.] over which the coastal state may exercise limited control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea.
Exclusive economic zone – [200 n.m.] A coastal nation has control of all economic resources within this zone, including fishing, mining, oil exploration, and any pollution of those resources, which include the sea, seabed, and subsoil to the exclusion of other
states. However, other nations have the right of navigation and overflight over this area, subject to the regulation of the coastal state. (has to be proclaimed by the State). Continental Shelf - This is the seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea. The continental shelf extends 200 n.m., and in some cases may extend up to 350 n.m., following the natural prolongation of the soil. The coastal state has the right to explore and exploit the natural resources in this area, but does not extend to other materials such as shipwrecks.
I. UNCLOS
Archipelagic state A State constituted wholly by 1 or more archipelagos and may include other islands
Archipelago A group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such form an intrinsic geographical, economic and political entity, or which historically have been regarded as such
Territorial sea A marginal belt of maritime water adjacent to the base lines extending 12 nm outward
Subject to the right of innocent passage* by other states Baselines Low waterline along the coast as marked on large scale charts
officially recognized by the coastal state Internal
waters/territorial waters
(ALL criminal laws apply)
All parts of the sea landwards from the baseline and inland rivers and lakes [under 1973 Consti, no right of innocent passage]
Established right of innocent passage
BUT: this new rule only applies to areas NOT previously considered as internal waters
Insular shelf Composed of:
1) Seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea 2) Seabed and subsoil adjacent to islands
Right to:
1) Explore and exploit natural resources 2) Erect installations needed
3) Erect safety zone with radius of 500 m.
*Innocent passage- passage not prejudicial to the interest of the coastal state or contrary to the principles of international law.
Test – WON it is an intrusive entry or is threatening to the sovereignty of the State. II. National Territory under the 1987 Consti
..all other territories over which the Philippines has
sovereignty or
jurisdiction
Changed wording from the 1973 version
… its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas
1) Terrestrial- all surfaces of land above the sea
2) Fluvial- inland waters: bays and rivers, streams, internal waters, sea waters landwards from the baseline
3) Aerial- air directly above its terrestrial and fluvial domains
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Magallona vs. Ermita [Baselines Law, Art. I, UNCLOS, RA9522]
RA9522 adjusted the country’s archipelagic baselines and classified the baseline regime of nearby territories. Amended the old Baselines law (RA3046), which was compliant to UNCLOS I and codified the sovereign right of states parties over their territorial sea but did not determine its breadth. RA9522, is compliant with UNCLOS III, which prescribes the water-land ratio, length and contour of baselines of archipelagic states like the Philippines and sets the deadline for the application for the extended continental shelf. RA9522 therefore shortened 1 baseline, optimized the location of some basepoints around the archipelago and classified adjacent territories, namely the Kalayaan Island Group (KIG) and the Scarborough Shoal, as “regimes of islands” whose islands generate their own applicable maritime zones. Constitutional.
First, RA9522 is a statutory tool to demarcate the country’s maritime zones and continental shelf under the UNCLOS III, and not to delineate Philippine territory. UNCLOS III has nothing to do with the acquisition or loss of territory. It is a multilateral treaty regulating sea-use rights over maritime zones, contiguous zone, and continental shelves that UNCLOS III delimits. On the other hand, baselines laws such as RA9522 are enacted by the state parties to mark out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. Thus, they are nothing but statutory mechanisms for the states parties to delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which states parties exercise treaty-based rights.
Second, RA9522’s use of the framework of regime of islands to determine the maritime zones of the KIG and the Scarborough Shoal are not inconsistent with the Philippines’ claim of sovereignty. Petitioners believe that such weakens our territorial claim. A look at RA3046 and RA9522 show that the latter mainly followed the base points mapped by the former; under both, the KIG and the Scarborough Shoal are still outside of the baselines drawn around the Philippine archipelago. RA9522, by optimizing the location of the basepoints, increase the Philippines’ total maritime space. Congress, if they included both islands inside our baselines, might be accused of “departing to an appreciable extent from the general configuration of the archipelago.”
Third, RA9522 and UNCLOS III are not incompatible with the Constitution’s delineation of internal waters. Petitioners contend that the law converts internal waters into archipelagic waters, hence subjecting them to the right of innocent passage. Philippines still exercises sovereignty over these waters under UNCLOS III. The political branches of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage. In the absence of municipal legislation, international law norms in UNCLOS III operate to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treaty’s limitations and conditions for their exercise.
ARTICLE II: DECLARATION OF PRINCIPLES AND STATE POLICIES: PRINCIPLES:
Sec. 1: The Philippines is a democratic and Republican State. Sovereignty resides in the people and all government authority emanates from them.
Elements of a State:
A community of persons more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing an organized government to which the great body of inhabitants render habitual obedience (people, territory, sovereignty, government).
- People: Community of persons sufficient in number and capable of maintaining the continued existence of the community and held together by a common bond of law.
- Sovereignty:
o Legal sovereignty: supreme power to affect legal interests either by legislative, executive or judicial action (lodged in the people and exercised by state agencies).
o Political sovereignty: sum total of all the influences in a state, legal and non-legal which determine the course of law.
- Government: Institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state.
Can Muslims have a state? Yes based on the definition it is possible.
Self executing v. non-self executing: When there is a specific right (OPOSA) then it can be a source of rights and obligation.
Presidential form of government: there is a separation of powers -- legislative, executive and judicial.
Parliamentary government:
1. The members of the government or cabinet or the executive arm are also members of the legislature.
2. The government or cabinet consisting of the political leaders of the majority party or of a coalition who are also members of the legislature, is in effect a committee of the legislature.
3. The government or cabinet has a pyramidal structure at the apex of which is the prime minister.
4. The government or cabinet remains in power only for as long as it enjoys the support of the majority of the legislature.
5. Government and legislature are possessed of control devices with which each can demand the other immediate political responsibility.
Republican State: wherein all government authority emanates from the people and exercised by representative chosen by the people.
The Philippines is not only a representative or republican state but also shares some aspects of direct democracy such as initiative and referendum.
State: is the corporate entity
Government: is one of the elements of a state and is the institution through which the state exercises its powers.
Administration: consists of the set of people without a change in either state or government (changes)
Tondo Medical v. CA
In 1999, the DOH launched the Health Sector Reform Agenda (HSRA). Petitioners questioned the first reform agenda involving the fiscal autonomy of government hospitals, particularly the collection of socialized user fees and the corporate restructuring of government hospitals. Petitioners alleged that the implementation of the aforementioned reforms had resulted in making free medicine and free medical services inaccessible to economically disadvantaged Filipinos. Posited that the HSRA is void for being in violation
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of the following constitutional provisions: Art. II, Sections 5, 9, 10, 11, 13, 15, and 18. The SC dismissed the petition since the abovementioned provisions do not contain judicially enforceable rights.
BCDA v. COA:
Congress passed an act that created the Bases Conversion and Development Authority (BCDA). The Board had the power to make compensation scheme for its employees. BCDA adopted a 10,000peso year-end benefit (YEB) grant for contractual, regular and permanent employees following that of the BSP’s scheme. BSP then increased its YEB to 30,000-35,000. The BCDA then increased to 30,000 and granted the same to BCDA members and consultants this was disallowed by COA. The SC held that under the law the BCDA members are only allowed to receive per diems of 5,000 per meeting and not to exceed 4 meetings in one month. YEB is only granted to the employees, but consultants do not have an employee-employer relationship with the BCDA. The claim of petitioners that under Art. 2 of the Constitution under the declaration of policies they should be granted the benefits because they have mouths to feed and stomachs to fill. The SC held the provisions in Article 2 are non-self executing and therefore cannot be used to support their argument.
Functions of government:
1. Constituent: compulsory functions which constitute the very bonds of society (peace and order from violence and robbery etc.).
2. Ministrant: Optional functions of the government (for public welfare that private wont usually do or that the government can do better than private).
Due to complexities of modern society more things are considered governmental functions such as housing, water supply etc.
Bacani v. NACOCO
NACOCO is NOT a government entity within the purview of section 2 of the Revised Administrative Code of 1917. Corporations performing certain functions of government do not acquire that status for the simple reason that they do not come under the classification of municipal or public corporation. While the National Coconut Corporation was organized with the purpose of “adjusting the coconut industry to a position independent of trade preferences in the United States” and of providing “Facilities for the better curing of copra products and the proper utilization of coconut by-products”, a function the government chose to exercise to promote the coconut industry; it was given a corporate power separate and distinct from government, for it was made subject to the provisions of Corporation Law in so far as its corporate existence and the powers that it may exercise are concerned. It may sue and be sued in the same manner as any other private corporations, and in this sense it is an entity different from our government. Unincorporated Corp.
ACCFA v. CUGCO:
ACCFA was charged with ULP by the Union because of violations of the CB. ACCFA then became ACA. Union sought to be declared as exclusive bargaining unit (EBU). The Court of Industrial Relations (CIR) granted this. ACA filed certiorari contesting the jurisdiction of the CIR. The SC held that the ACA was doing government functions now not constituent but ministrant (optional for government welfare due to complexities of modern society). Therefore being a government agency cant have an EBU because the right to strike cannot be granted to them.
GOCC
VFP vs. Reyes
The issue is whether the VFA’s officers have been delegated some portion of the sovereignty of the country, to be exercised for the public benefit. The Court ruled that the functions of petitioner corporation enshrined in Section 4 of Rep. Act No. 264031 should
most certainly fall within the category of sovereign functions. The protection of the interests of war veterans is not only meant to promote social justice, but is also intended to reward patriotism. All of the functions in Section 4 concern the well-being of war veterans, our countrymen who risked their lives and lost their limbs in fighting for and defending our nation.
Instrumentalities MIAA v. CA
MIAA is not a government-owned or controlled corporation but an instrumentality of the National Government and thus exempt from local taxation; it does not have capital stock that is divided into shares. It is also a non-stock corporation because it has no members. MIAA is a government instrumentality vested with corporate powers to perform efficiently its governmental functions. It is like any other government instrumentality, except MIAA is vested with corporate powers. MIAA exercises the governmental powers of eminent domain, police authority and the levying of fees and charges, at the same time, MIAA exercises "all the powers of a corporation under the Corporation Law, insofar as these powers are not inconsistent with the provisions of this Executive Order. Likewise, when the law makes a government instrumentality operationally autonomous, the instrumentality remains part of the National Government machinery although not integrated with the department framework.
Quasi-Public Corp. Phil. Society v. COA:
The Philippine Society for the Prevention of Cruelty to Animals was incorporated as a corporation by special law since at the time of its creation there was no corporation code yet. Under the law they had the power to fine violators of the law (half would go to the municipality and the other half to them). These powers however were subsequently revoked. An EO was made that wanted to examine their books by COA. They claimed that they are not a GOCC that would be subject to that. The SC held that they are NOT a GOCC but a private corporation. The charter test does not apply here because during that time there was no corporation code yet. Petitioner’s charter also shows that it is not subject to any control or supervision by any government agency of the state and lastly just because their functions redound to the public does not necessarily make it a public corporation.
Serana vs. SB
Petitioner contends that she is not a public officer. She does not receive any salary or remuneration as a UP student regent. In Aparri v. Court of Appeals, the Court held that: A public office is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercise by him for the benefit of the public. The administration of the UP is a sovereign function in line with Article XIV of the Constitution. UP performs a legitimate governmental function by providing advanced instruction in literature, philosophy, the sciences, and arts, and giving professional and technical training. Moreover, U is maintained by the Government and it declares no dividends and is not a corporation created for profit.
Legitimacy of Governments:
1. De jure: Established by authority of a legitimate sovereign
a. Cory government was de jure since established by the authority of the legitimate sovereign, the people.
b. GMA’s was also de jure
2. De facto: established in defiance of a legitimate sovereign
a. Government gets possession and control of or usurps by force or by the voice of the majority.
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b. Established and maintained by invading military forces
c. Established as an independent government by inhabitants of a country who rise in insurrection against the parent state.
Co Kim Cham v. Valdez Tan Khe:
The issue in this case was WON the proceedings during the Japanese period still apply or continue after the occupation? The SC held yes because the governments established in the Philippines under the names of the Philippine Executive Commission and Republic of the Philippines during the Japanese military occupation or regime were de facto governments. It is classified as a de facto government of the second kind or a government of paramount force.
The judicial acts and proceedings of the courts of justice of those governments, which are not of a political complexion, were good and valid, and, by virtue of the well-known principle of postliminy (postliminium) in international law, remained good and valid after the liberation or reoccupation of the Philippines. It is part of international law that acts and proceedings of the legislative, executive, and judicial departments of a de facto government are valid.
There are several kinds of de facto governments:
1. That 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.
2. That which is established and maintained by military forces who invade and occupy a territory of the enemy in the course of war (government of paramount force—this was the kind of government in this case).
a. Its existence is maintained by active military power within the territories and against the rightful authority of an established and lawful government.
b. That while it exists it must necessarily be obeyed in civil matters by private citizens who by acts of obedience rendered in submission to such force, do not become responsible as wrongdoers for those acts, though not warranted by the laws of the rightful government.
3. Established as an independent government by the inhabitants of a country who rise in insurrection against the parent state.
Letter of Associate Justice Puno
The CA is a new entity, different and distinct from the CA or the IAC existing prior to EO 33, for it was created in the wake of the massive reorganization launched by the revolutionary government of Corazon Aquino in the aftermath of the people power (EDSA) revolution in 1986.
A revolution has been defined as “the complete overthrow of the established government in any country or state by those who were previously subject to it” or as “a sudden, radical and fundamental change in the government or political system, usually effected with violence or at least some acts of violence.” In Kelsen's book, General Theory of Law and State, it is defined as that which “occurs whenever the legal order of a community is nullified and replaced by a new order . . . a way not prescribed by the first order itself.”
From the natural law point of view, the right of revolution has been defined as “an inherent right of a people to cast out their rulers, change their policy or effect radical reforms in their system of government or institutions by force or a general uprising when the legal and constitutional methods of making such change have proved inadequate or are so obstructed as to be unavailable.” It has been said that “the locus of positive law-making power lies with the people of the state” and from there is derived “the right of the people to abolish, to reform and to alter any existing form of government without regard to the existing constitution.”
It is widely known that Mrs. Aquino’s rise to the presidency was not due to constitutional processes; in fact, it was achieved in violation of the provisions of the 1973 Constitution as a Batasang Pambansa resolution had earlier declared Mr. Marcos as the winner in the 1986 presidential election. Thus it can be said that the organization of Mrs. Aquino’s Government which was met by little resistance and her control of the state evidenced by the appointment of the Cabinet and other key officers of the administration, the departure of the Marcos Cabinet officials, revamp of the Judiciary and the Military signaled the point where the legal system then in effect, had ceased to be obeyed by the Filipino.
Q: Was the Bill of Rights in effect during the interregnum after the actual and effective take-over of power by the revolutionary government following the cessation of resistance by loyalist forces up to 24 March 1986 (immediately before the adoption of the Provisional Constitution).
NO. The government in power was concededly a revolutionary government bound by no constitution, there was no Bill of Rights during the interregnum. Nevertheless, the Filipino people continued to enjoy, under the ICCPR and the UDHR, almost the same rights found in the Bill of Rights of the 1973 Constitution.
The revolutionary government, after installing itself as the de jure government, assumed responsibility for the State’s good faith compliance with the Covenant to which the Philippines is a signatory. Article 2(1) of the Covenant requires each signatory State “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.” Under Article 17(1) of the Covenant, the revolutionary government had the duty to insure that “[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence.” The Declaration, to which the Philippines is also a signatory, provides in its Article 17(2) that “[n]o one shall be arbitrarily deprived of his property.” Although the signatories to the Declaration did not intend it as a legally binding document, being only a declaration, the Court has interpreted the Declaration as part of the generally accepted principles of international law and binding on the State. Thus, the revolutionary government was also obligated under international law to observe the rights of individuals under the Declaration. 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. (Republic vs. SB)
Sovereignty: People v. Gozo:
Gozo bought house and lot inside the US naval reservation. She was told by the Mayor’s office that she didn’t have a permit for reconstruction of her house. Gozo was charged with a violation of a municipal ordinance. She claimed that it was unconstitutional or that it should not apply to her because she was inside the US bases and so the Mayor had no jurisdiction over her since US law governed there. The SC held that the Mayor has jurisdiction even if inside a military base because Philippine sovereign power is still present. The Philippine has not abdicated its sovereignty but has consented (based on comity) to the US to have preferential but NOT EXCLUSIVE jurisidiction of such offenses. “Any state may, by its consent, express or implied, submit to a restriction of its sovereign rights. There may thus be a curtailment of what otherwise is a power plenary in character. That is the concept of sovereignty as auto-limitation, which, in the succinct language of Jellinek, “is the property of a state-force due to which it has the exclusive capacity of legal self-determination and self-restriction.” A state then, if it chooses to, may refrain from the exercise of what otherwise is illimitable competence.” The opinion was at pains to point out though that even then, there is at the most diminution of jurisdictional rights, not its disappearance.
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“Its laws may as to some persons found within its territory no longer control. Nor does the matter end there. It is not precluded from allowing another power to participate in the exercise of jurisdictional right over certain portions of its territory. If it does so, it by no means follows that such areas become impressed with an alien character. They retain their status as native soil. They are still subject to its authority. Its jurisdiction may be diminished, but it does not disappear. So it is with the bases under lease to the American armed forces by virtue of the military bases agreement of 1947. They are not and cannot be foreign territory.”
Sec. 2: The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.
The Philippines denounces aggressive war NOT defensive war. Some generally accepted principles of international law:
1. right of an alien to be released on bail while awaiting deportation when his failure to leave the country is due to the fact that no country will accept him. 2. The right of a country to establish military commissions to try war criminals. 3. The duty to protect the premises of embassies and legations.
Adoption of International law and the doctrine of incorporation: As applied to Treaties and Agreements
Tañada v. Angara: [generally accepted principles of law common to civilized nations]
Petition seeking to nullify the ratification of the Philippines to the WTO because the WTO would allow foreign market to invade Filipino market to the detriment of the people. They further claimed that the WTO would limit, restrict and impair Philippine economic sovereignty. The SC held that the WTO was not absolute but only regulates some commercial restrictions and that the WTO was the only viable structure for multilateral treaty. By their voluntary act, nations may surrender some aspects of state power in exchange for greater benefits granted or derived from convention or pact. While sovereignty has traditionally been seen absolute it is subject to restrictions and limitations voluntarily agreed upon so it is not isolated from the rest of the world.
- In its Declaration of Principles and state policies, the Constitution “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 law, which are considered automatically part of our own laws. Pacta sunt servanda – international agreements must be performed in good faith. A treaty is not a mere moral obligation but creates a legally binding obligation on the parties.
- A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.
Equal Standing of International Law and Municipal Law Lim vs. Executive Secretary
A rather recent formulation of the relation of international law vis-à-vis municipal law was expressed in Philip Morris, Inc. v. Court of Appeals, to wit:
x x x Withal, the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied in most
countries, rules of international law are given a standing equal, not superior, to national legislation.
From the perspective of public international law, a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. Further, a party to a treaty is not allowed to “invoke the provisions of its internal law as justification for its failure to perform a treaty.”
Our Constitution espouses the opposing view. As stated in section 5 of Article VIII, the SC has the power over “all cases in which the constitutionality or validity of any treaty, international or executive agreement, is in question.”
Ichong v. Hernandez, ruled that the provisions of a treaty are always subject to qualification or amendment by a subsequent law, or that it is subject to the police power of the State.In Gonzales v. Hechanova, it was held that our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.
Phillip Morris vs. Fortune Tobacco
Petitioners claim that an infringement of their respective trademarks had been committed and prayed for the issuance of a preliminary injunction against respondents. They claim that they have registered the aforementioned trademarks in their respective countries of origin and that, by virtue of the long and extensive usage of the same, these trademarks have already gained international fame and acceptance.
The Philippines’ adherence to the Paris Convention effectively obligates the country to honor and enforce its provisions as regards the protection of industrial property of foreign nationals in this country. However, any protection accorded has to be made subject to the limitations of Philippine laws. Hence, despite Article 2 of the Paris Convention which substantially provides that (1) nationals of member-countries shall have in this country rights specially provided by the Convention consistent with Philippine laws, and enjoy the privileges that Philippine laws grant to its nationals, and (2) while no domicile requirement in the country where protection is claimed shall be required of persons entitled to the benefits of the Union for the enjoyment of any industrial property rights, foreign nationals must still observe and comply with the conditions imposed by Philippine law on its nationals.
Pharmaceutical and Health Care v. Duque: [Soft law]
The milk code was passed to give effect to the International code of marketing treaty. DOH made regulations which was claimed to have expanded the coverage of the law (Milk Code). The SC held that it did expand the provisions of the law. Under the treaty it provides a prohibition on advertisement (which was what the regulation was about) but the Milk Code did not adopt this and thus we are not bound to do this. Furthermore, it was not proven or established that it was customary international law, which would make it incorporated in our country/laws. It was propounded that WHA Resolutions may constitute "soft law" or non-binding norms, principles and practices that influence state behavior.
"Soft law" does not fall into any of the categories of international law, it is an expression of non-binding norms, principles, and practices that influence state behavior. (ex. UN Declaration of Human Rights, World Intellectual Property Organization (WIPO), a specialized agency on intellectual property, International Labor Organization and the Food and Agriculture Organization).
WHO has resorted to soft law during the SARS outbreak. It represented significant steps in laying the political groundwork for improved international cooperation on infectious diseases. These resolutions clearly define WHO member states' normative duty to cooperate fully with other countries and with WHO in connection with infectious disease surveillance and response to outbreaks. The duty is neither binding nor
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For an international rule to be considered as customary law, it must be established that such rule is being followed by states because they consider it obligatory to comply with such rules (opinio juris). Respondents have not presented any evidence to prove that the WHA Resolutions, although signed by most of the member states, were in fact enforced or practiced by at least a majority of the member states; neither have respondents proven that any compliance by member states with said WHA Resolutions was obligatory in nature.
Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary international law that may be deemed part of the law of the land. Legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. The provisions of the WHA Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies without the need of a law enacted by the legislature.
Sec. 3: Civilian authority is at all times, supreme over the military. The armed forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.
Civilian Supremacy: IBP v. Zamora:
What is being assailed is the constitutional grounds of the order of president Erap in deploying marines to join the PNP in visibility campaignto patrol the metropolis because of high crime rates. The SC held that it was not unconstitutional because of the President’s power as commander in chief. This power is not limited to emergency but also ensuring maintenance of day-to-day peace. Furthermore it does not violate civilian supremacy clause because the marines aren’t doing anything but providing support and cooperation, in fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines joint visibility patrols.
Sec. 4: The prime duty of the Government is to serve and protect the people. The government may call upon the people to defend the State and in the fulfillment thereof, all citizens may be required, under the conditions provided by law, to render personal military or civil service.
Sec. 5: The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.
Kilosbayan vs. Morato
As already stated, however, these provisions are not self-executing. They do not confer rights which can be enforced in the courts but only provide guidelines for legislative or executive action. By authorizing the holding of lottery for charity, Congress has in effect determined that consistently with these policies and principles of the Constitution, the PCSO may be given this authority. That is why we said with respect to the opening by the PAGCOR of a casino in Cagayan de Oro, "the morality of gambling is not a justiciable issue. Gambling is not illegal per se. . . . It is left to Congress to deal with the activity as it sees fit."
Sec. 6: The separation of Church and State shall be inviolable. STATE POLICIES:
Sec. 7: The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.
Generally, these provisions are that they are not self-executing provisions and thus need some implementing acts of Congress.
The government must maintain an independent foreign policy and give paramount consideration to national sovereignty, territorial integrity, national interest, and self-determination.
Lim v. Executive Secretary:
Balikatan exercises between the US and the Philippines (training program after 911) was being conducted based on the Mutual Defense Treaty (MDT). It was claimed that the MDT was only to be enforced in case of armed attack of an external aggressor. The SC held that the Balikatan was covered by the VFA which allows regulatory mechanism allowing the US to visit when approved by the Philippine government. The constitution shows antipathy towards foreign military troops and WON they are engaged in combat is a question of fact (here it is combat related activities and not actual combat itself which justifies the exercise).
Sec. 8: The Philippines, consistent with the national interest, adopts and pursues a policy of freedoms from nuclear weapons in its territory.
The policy is freedom from nuclear weapons exception to this policy however can be made when made by political departments and justified by demands of the national interest (the policy doesn’t prohibit the use of nuclear energy).
Sec. 9: The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living and an improved quality of life for all.
Sec. 10: The State shall promote social justice in all phases of national development. Social justice: equalization of economic, political, and social opportunities with special emphasis on the duty of the state to tilt the balance of social forces by favoring the disadvantaged in life.
Sec. 11: The State values the dignity of every human person and guarantees full respect for human rights.
Sec. 12: The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.
Wisconsin v. Yoder: [Compulsory Education]
Respondents are members of the Amish community. Wisconsin's compulsory school-attendance law required them to cause their children to attend public or private school until reaching age 16 but the respondents declined to send their children, ages 14 and 15, to public school after they complete the eighth grade as part of their Amish practice to avoid their modern influences. There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education. Providing public schools ranks at the very apex of the function of a State. Yet even this paramount responsibility was made to yield to the right of parents to provide an equivalent education in a privately operated system. As that case suggests, the values of parental direction of the religious upbringing
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place in our society. Thus, a State's interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children so long as they, in the words of Pierce, prepare (them) for additional obligations.
Meyer v. Nebraska: the state may not prohibit the teaching of foreign languages to children.
In education, the primary right belongs to the parents. The Constitution affirms the primary right of parents in the rearing of children to prepare them for a productive civic and social life and at the same time it affirms the secondary and supportive role of the State.
The State as parens patriae has authority and duty to step in where parents fail to or are unable to cope with their duties to their children.
Sec. 13: The State recognizes the vital role of the youth in nation- building and shall promote and protect their physical, moral, spiritual, intellectual and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.
Protection begins from conception in order to prevent the State from adopting the doctrine in the US Supreme Court decisions, which liberalized abortion.
Sec. 14: The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.
Sec. 15: The State shall protect and promote the right to health of the people and instill health consciousness among them.
Sec. 16: The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.
Oposa v. Factoran: [Inter-generational Responsibility]
Minors represented by parents as a class of taxpayers filed a case against the DENR secretary enjoining the latter to cancel all timber licenses and cease and desist from renewing or approving new timber licenses based on right to a balanced and healthful ecology. The SC held that the case involved a class suit where all have a common and general interest – representing their generations and generations yet unborn (intergenerational responsibility). There is a cause of action based on Art. 2, S. 16 of the Constitution which was deemed self-executing.
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 fear of its framers that without such mention, there will come a time when all would be lost. Such right carries with it the correlative duty to refrain from impairing the environment.
MMDA Manila Bay Case: Continuing mandamus for environment cases (also upheld the right and related it to the right to life).
Sec. 17: The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress and promote total human liberation and development.
This however does not mean that the government is not free to balance the demands of education against other competing and urgent demands.
Neri after appearing and testifying before the Senate refused to answer three questions pertaining to the NBN-ZTE deal invoking executive privilege. After not showing up, he was cited for contempt. The SC ruled that the invocation of executive privilege was properly made and the Senate failed to show a compelling reason in rebutting the presumption of executive privilege for the divulging of the answers.
Sec. 18: The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.
Sec. 19: The state shall develop a self-reliant and independent national economy effectively controlled by Filipinos.
Garcia v. BOI: Taiwanese investors of Bataan Petrochemical Corporation (BPC) wanted to transfer from Bataan to Batangas because they felt there were better labor conditions, LPG gas, and they would partner with Shell. The SC held the right of final choice where to transfer was not with the investors. Under the Constitution there are provisions regarding national economy and patrimony. Petrochemical affects national interest thus government should have final choice and Bataan was the better choice because there their partner would be a local company (PNOC) while if they went to Batangas it would be a foreign company (SHELL).
Sec. 20: The State recognizes the indispensable role of the private sector, encourages private enterprise and provides incentives to needed investments.
Sec.21: The State shall promote comprehensive rural development and agrarian reform Sec. 22: The state recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.
Sec. 23: The State shall encourage non-governmental community-based, or sectoral organizations that promote the welfare of the nation.
Sec. 24: The State recognizes the vital role of communication and information in nation-building.
Sec. 25: The State shall ensure the autonomy of Local Governments.
Sec. 26: The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.
Pamatong v. Comelec:
Petitioner wanted to run for President but the COMELEC denied his certificate of candidacy. Petitioner, thus, filed this petition alleging that his right to “equal access to opportunities for public service” under Section 26, Article II of the Constitution has been violated. The Supreme Court held that there is no constitutional right to run for or hold public office, Section 26 neither bestows such a right nor elevates the privilege to the level of an enforceable right. There is merely a privilege subject to limitations imposed by law. Moreover, the SC explained, that provisions under Article II are generally considered not self-executing.
Equal access to opportunities to public office may be subjected to limitations such as practicality, costs, etc. As long as the limitations apply to everyone without discrimination then equal access clause is not violated.
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Sec. 27: The State shall maintain honesty and integrity in public service and take positive and effective measures against graft and corruption.
Sec. 28: Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. Neri vs. Senate
Neri after appearing and testifying before the Senate refused to answer three questions pertaining to the NBN-ZTE deal invoking executive privilege. After not showing up, he was cited for contempt. The SC ruled that the invocation of executive privilege was properly made and the Senate failed to show a compelling reason in rebutting the presumption of executive privilege for the divulging of the answers.
There are certain types of information which the government may withhold from the public," that there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters"; and that "the right to information does not extend to matters recognized as ‘privileged information’ under the separation of powers, by which the Court meant Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings.”
PSB and Garcia vs. Senate Impeachment Court [Carpio Dissent]:
Government officials and employees have the “obligation” to disclose their assets to the public, and the public has “the right to know” the assets of government officials and employees. This “obligation” of government officials and employees to disclose all their assets is absolute and has no exception. The right of the public to know the assets of government officials and employees is also absolute and has no exception.
In Re: Production of Court Records:
In line with the publics constitutional right to information, the Court has adopted a policy of transparency with respect to documents in its possession or custody, necessary to maintain the integrity of its sworn duty to adjudicate justiciable disputes. This grant, however, is not as open nor as broad as its plain terms appear to project, as it is subject to the limitations the laws and the Court’s own rules provide. As heretofore stated, for the Court and the Judiciary, a basic underlying limitation is the need to preserve and protect the integrity of their main adjudicative function. To qualify for protection under the deliberative process privilege, the agency must show that the document is both (1) predecisional and (2) deliberative:
A document is “predecisional” under the deliberative process privilege if it precedes, in temporal sequence, the decision to which it relates. Communications are considered predecisional if they were made in the attempt to reach a final conclusion.
A material is “deliberative,” on the other hand, if it reflects the give- and-take of the consultative process. The key question in determining whether the material is deliberative in nature is whether disclosure of the information would discourage candid discussion within the agency. If the disclosure of the information would expose the government’s decision- making process in a way that discourages candid discussion among the decision-makers (thereby undermining the courts’ ability to perform their functions), the information is deemed privileged.
Gamboa vs. Teves [generally, provisions outside Art. II-self-executing, unless “as may be provided by law”]
While some constitutional provisions are self-executing, others are not. A constitutional provision is self-executing if it fixes the nature and extent of the right conferred and the liability imposed such 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. On the other hand, if the provision needs a supplementary or enabling legislation, it is merely a declaration of policy and principle, which is not self-executing.
ARTICLE VI: THE LEGISLATIVE DEPARTMENT
Section 1: The legislative power shall be vested in the congress of the Philippines, which shall consist of a Senate and a House of Representatives,
Except to the extent reserved to the people by provision on initiative and referendum. Legislative power is the authority to make laws and to alter or repeal them.
Bicameralism:
1. Allows a body with national perspective to check the parochial tendency of representatives.
2. Allows for more careful study of legislation. 3. Serves as training ground for national leaders.
Unicameralism: Simplicity of organization resulting in economy and efficiency, facility in pinpointing responsibility for legislation and avoidance of duplication.
Kinds of Legislative Power:
1. Original Legislative Power: possessed by sovereign people
2. Derivative Legislative Power: From sovereign delegated to legislative bodies. 3. Constituent: the power to amend or revise the Constitution
4. Ordinary: power to pass ordinary laws. Limits on Legislative Power:
1. Substantive: curtail the contents of law 2. Procedural: curtail manner of passing laws Plenary power is legislative
Legislative’s power to legislate is plenary and can legislate on any subject matter. For this reason, Congress cant make irrepealable laws as this would curtain the plenary power of future Congress.
The plenary powers of the legislative are subject only to Constitutional limitations. Thus, we have the following examples of Constitutional limitations to legislative power:
A law passed by Congress cannot violate the Constitution
Congress cannot pass a law that amounts to a usurpation of executive or judicial prerogatives
Congress cannot pass a law that allows it to appoint officials in the executive department The Senate cannot initiate appropriation and tariff bills
Non-delegability of Legislative Power
Legislative power is generally non-delegable under the principle of delegata potestas non potest delegari. The sovereign people saw it fit to delegate legislative powers to Congress. Congress, therefore, cannot abdicate itself of this mandate by further delegating this power to another body.
This principle however admits several exceptions in our jurisdiction: 1. Delegation of legislative power to local governments 2. Delegation of rule-making power to administrative bodies 3. Constitutionally recognized exceptions
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Grant of Quasi-Legislative Power to LGUs and Administrative Bodies Rubi v. Provincial Board of Mindoro (1919)
Valid vs. Invalid delegation
"The true distinction, therefore, is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made."
Discretion may be committed by the legislature to an executive department or official. The legislature may make decisions of executive departments or subordinate officials thereof, to whom it has committed the execution of certain acts, final on questions of fact. The growing tendency in the decisions is to give prominence to the "necessity," of the case.
Legislative delegation to local authorities
An exception to the general rule, sanctioned by immemorial practice, permits the central legislative body to delegate legislative powers to local authorities.
Instances of Delegation allowed by the Constitution
• Congress may, by law, grant the President necessary powers during times of war and national emergencies for a limited period and subject to restrictions. This grant of power may include legislative power. [Art. VI, Sec 23(2)]
• The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. [Art. VI, Sec. 28(2)]
Valid Delegation of Legislative Power Necessity of delegating subordinate legislation
The validity of delegating legislative power is now a quiet area in the constitutional landscape. In the face of the increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here. (SJS v. DDB, 2008) Requisites of a valid delegation of legislative power to administrative agencies: It must be made clear that legislative power cannot be delegated to administrative agencies. What is delegated is only rule-making power or law execution.
They are allowed to:
o “Fill up the details” of an already complete statute through implementing rules and regulations
o Or to ascertain facts necessary to bring a contingent law into actual operation.
How do you distinguish between delegation of law-making powers and the delegation of law execution powers?
There are two accepted tests to determine whether or not there is a valid delegation of legislative power, viz., the completeness test and the sufficient standard test.
Under the first test, the law must be complete in all its terms and conditions when it leaves the legislature such that when it reaches the delegate the only thing he will have to do is enforce it.
Under the sufficient standard test, there must be adequate guidelines or limitations in the law to map out the boundaries of the delegateÊs authority and prevent the delegation from running riot. Both tests are intended to prevent a total transference of legislative authority to the delegate, who is not allowed to step into the shoes of the legislature and exercise a power essentially legislative. (Eastern Shipping Lines v. POEA)
Elements of a Valid Delegation 1. Completeness:
• The Law must be complete in itself
• It must set forth therein the policy to be carried out or implemented by the delegate
What can be delegated is the discretion to determine how the law may be enforced, not what the law shall be. The ascertainment of the latter subject is a prerogative of the legislature. This prerogative cannot be abdicated or surrendered by the legislature to the delegate. (Eastern Shipping Lines v. POEA)
2. The law must fix a sufficient standard
Limits of which are sufficiently determinate or determinable These will guide the delegate in the performance of his functions.
The standards formulated need not be in precise language rather it can be drawn from the declared policy of the law and from the totality of the delegating statute.
It may even be embodied in other states on the same subject as the challenged law. Sufficient standards of delegation of legislative power
Parenthetically, it is recalled that this Court has accepted as sufficient standards “public interest” in People v. Rosenthal, “justice and equity” in Antamok Gold Fields v. CIR, “public convenience and welfare” in Calalang v. Williams, and “simplicity, economy and efficiency” in Cervantes v. Auditor General, to mention only a few cases. In the United States, the “sense and experience of men” was accepted in Mutual Film Corp. v. Industrial Commission, and “national security” in Hirabayashi v. United States. (Eastern Shipping Lines v. POEA)
“Public Interest” as a standard
[T]he term "public interest" is not without a settled meaning. "Appellant insists that the delegation of authority to the Commission is invalid because the stated criterion is uncertain. That criterion is the public interest. It is a mistaken assumption that this is a mere general reference to public welfare without any standard to guide determinations, The purpose of the Act, the requirement it imposes, and the context of the provision in question show the contrary. (People v. Rosenthal, 1939)
A legislative standard need not be expressed. It may simply be gathered or implied. Nor need it be found in the law challenged because it may be embodied in other statutes on the same subject as that of the challenged legislation. (Chiongbian v. Orbos, 1995) Others based on case law:
Standard Delegation
Law requiring every public utility to furnish annually a detailed report of finances and operations which the Board may from time to time prescribe.
Invalid delegation because it was to general. (Compania general de tabacos v. Board)
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If for any cause conditions arise resulting in an extraordinary rise of palay, the Governor general can promulgate temporary rules and emergency measures fixing the price of cereals
Invalid since no standard to guide the Governor General as to what constitutes an extraordinary rise in the price of palay. (United States v. Ang)
A regulation penalizing electro fishing. Invalid as it was not one of the forms punished in the Fisheries Act. It went beyond the scope. (People v. Maceren) RA 6640 decreed a wage increase
higher than the CBA increase, DOLE then issued a regulation which provided that salary increases made pursuant to a CBA would not be considered as compliance with the new law.
Invalid since it expanded the law itself by providing such condition (Cebu Oxygen & Acetylene v. Sec. Drilon).
Oil deregulation law provided two factors to consider in effecting full deregulation of oil industries. Another factor however was considered.
Invalid because resulted in the rewriting of the standards set forth under the law. (Tatad v. Sec. Depart of Energy)
Secretary of Agricultural by law was authorized to restrict the use of any fishing net or fishing device for the protection of fish fry or fish eggs. Thus, a regulation was passed prohibiting the use of trawls.
Valid since details were provided by law (Araneta v. Gatmaitan).
LOI was issued requiring the use of
Early Warning Devices Valid since the standard of “safe transit upon the roads” is sufficient. Furthermore we accept the generally accepted principles of international law (based on Geneva Convention on Roads Signs and Signals). (Agustin v. Edu).
Law which authorized the Medical Board of Examinations to have tests for entrance to medical schools assailed because no sufficient standards.
Valid, the standard found in the law’s desire for the “standardization and regulation of medical education.” (Tablarin v. Gutierrez).
Contingent Legislation
While the power to tax cannot be delegated to executive agencies, details as to the enforcement and administration of an exercise of such power may be left to them, including the power to determine the existence of facts on which its operation depends, the rationale being that the preliminary ascertainment of facts as basis for the enactment of legislation is not of itself a legislative function but is simply ancillary to legislation. (ABAKADA v. Ermita, 2005)
Laws may be made effective on certain contingencies. The legislature may delegate a power not legislative which it may itself rightfully exercise. The power to ascertain facts is such a power which may be delegated. There is nothing essentially legislative in ascertaining the existence of facts or conditions as the basis of the taking into effect of a law. (People v. Vera)
Where the effectivity of the law is made dependent on the verification by the executive of the existence of certain condition, it is not a delegation of legislative power. This is called
contingent legislation. Congress provides the conditions required before a law takes effect; the executive factually determines when those conditions exist. (ABAKADA v. Ermita, 2005)
Filling in details
There is no undue delegation of legislative power when there is only a grant of the power to “fill up” or provide the details of legislation because Congress did not have the facility to provide for them.
To a certain extent matters of detail may be left to be filled in by rules and regulations to be adopted or promulgated by executive officers and administrative boards. As a rule, an act of the legislature is incomplete and hence invalid if it does not lay down any rule or definite standard by which the administrative board may be guided in the exercise of the discretionary powers delegated to it. (People v. Vera, 1937)
Undue Delegation
The legislature does seemingly on its own authority extend the benefits of the Probation Act to the provinces but in reality leaves the entire matter for the various provincial boards to determine. If a provincial board does not wish to have the Act applied in its province, all that it has to do is to decline to appropriate the needed amount for the salary of a probation officer. This is a virtual surrender of legislative power to the provincial boards. (People v. Vera)
Legislative Veto of Implementing Rules and Regulations
After the enactment of a law, congressional oversight is limited to scrutiny and investigation. Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution.
Legislative veto is a statutory provision requiring the President or an administrative agency to present the proposed implementing rules and regulations of a law to Congress which, by itself or through a committee formed by it, retains a “right” or “power” to approve or disapprove such regulations before they take effect. It is unconstitutional Congress, in the guise of assuming the role of an overseer, may not pass upon the legality of IRR’s by subjecting them to its stamp of approval without disturbing the calculated balance of powers established by the Constitution. The discretion to approve or disapprove Rules and Regulations is a judicial power. (Abakada v. Purisima)
Rules and regulations may have the force of penal laws if:
1. the delegating statute itself must specifically authorize the promulgation of penal regulations
2. The penalty must not be left to the admin agency but provided by the statute itself.
3. The regulation must be published in the official gazette or a newspaper of general circulation.
- There should be designated limits of the penalty and it should not be left to the discretion to the judge (penalty of “imprisonment, in the discretion of the court” is invalid because it is not for the court to fix the term of imprisonment where no points of reference have been provided by the legislature- (People v. Dacuycuy).
Dagan v. PRC:
Phil. Racing Commission (PhilRaCom) made a directive pursuant to law to come up with rules on how to check horses for Equine Infectious Anemia (EIA). The Philippine Racing Club and Manila Jockey Club then came up with their own rules. Race horse
