Vous êtes sur la page 1sur 364

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 17/12/2008

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 executes 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 direct 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; it is the fundamental law of the State

intended primarily to meet existing conditions only; it conforms to the Constitution

PHILIPPINE CONSTITUTION

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 27/12/2008

Constitution—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, however 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.

Classification:

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

Examples:

character;

a.

statutes

of

fundamental

b. judicial decisions;

c. commentaries of publicists;

d. customs and traditions;

e. certain common law principles

2. Enacted (conventional) or Evolved (Cumulative)

Enacted (conventional)

Evolved (Cumulative)

-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 political evolution, not

inaugurated at any specific time but changing by accretion rather than by any

 

systematic method

3. Rigid or Flexible

Rigid

Flexible

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 37/12/2008

-one that can be amended only by a formal and usually difficult process

-one that 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.

Interpretation:

1. Verba Legiswhenever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed.

2. When there is Ambiguityratio 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 pereatthe 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.

as

mandatory rather than directory; and prospective rather than retroactive.

In

case

of

doubt,

the

provision

should

be

considered

self-executing;

Self-executing provision—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.

Essential Qualities of the Written Constitution:

1. Broad;

2. Brief; and

3. Definite.

Essential parts of a good written Constitution:

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 47/12/2008

a. Constitution of Liberty—sets forth the fundamental civil and political rights of the citizens and imposes limitations on the powers of the government as a means of securing the enjoyment of those rights. e.g. Bill of Rights

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 in the fundamental law may be brought about. e.g. Art. XVII-Amendments or Revisions

Effects of Declaration of Unconstitutionality:

2 Views:

a. ORTHODOX VIEW—

i. an unconstitutional act is not a law;

ii. it confers no rights;

iii. it imposes no duties;

iv. it affords no protection;

v. it creates no office;

vi. it is inoperative, as if it had not been passed at all.

b. 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 (Ynot vs. IAC).

Partial Unconstitutionality

Requisites:

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.

PREAMBLE

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 57/12/2008

WE, THE SOVEREIGN FILIPINO PEOPLE, IMPLORING THE AID OF ALMIGHTY GOD, IN ORDER TO BUILD A JUST AND HUMANE SOCIETY AND ESTABLISH A GOVERNMENT THAT SHALL EMBODY OUR IDEALS AND ASPIRATIONS, PROMOTE THE COMMON GOOD, CONSERVE AND DEVELOP OUR PATRIMONY, AND SECURE TO OURSELVES AND OUR POSTERITY THE BLESSINGS OF INDEPENDENCE AND DEMOCRACY UNDER THE RULE OF LAW AND A REGIME OF TRUTH, JUSTICE, FREEDOM, LOVE, EQUALITY, AND PEACE, DO ORDAIN AND PROMULGATE THIS CONSTITUTION.

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

Preamble

is

not

a

source

power

or

right

for

any

department

of

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 approval by ratifying it in a plebiscite.

1. It does not confer rights nor impose duties.

2. 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.

ARTICLE I NATIONAL TERRITORY

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 67/12/2008

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 submarines 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.”

Two (2) 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.

Do you consider the Spratlys Group of Islands as part of Philippine

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. It is not part of the Philippine Archipelago. Historically, when we talk about Philippine Archipelago, we refer to those islands and waters that were ceded by the Spain to the United States by virtue of Treaty 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.

Archipelago?

Spratlys

Group

of

Islands

is

not

part

of

the

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. By then President Marcos, what he 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,

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 77/12/2008

and effective occupation and control. Thus, in accordance with the international law, the Spratlys Group of islands is subject to the sovereignty of the Philippines.

Do you consider the Spratlys group of Islands as part of our National Territory? Yes. Article I of the Constitution provides: “The national territory comprises the Philippine archipelago, x x x, and all other territories over which the Philippines has sovereignty or jurisdiction, x x x.” The Spratlys Group of islands falls under the second phrase “and all other territories over which the Philippines has sovereignty or jurisdiction”. It is part of our national territory because Philippines exercise sovereignty (through election of public officials) over Spratlys Group of Islands.

What was the basis of the Philippines’ claim over the Spratlys? Through discovery of Tomas Cloma and occupation

Modes of acquiring territories:

1. Discovery and Occupation—which are terra nullius (land belonging to no one)

Doctrine of Effective Occupation—discovery alone is not enough. Mere discovery gives only an inchoate right to the discoverer. For title to finally vest, discovery must be followed by effective occupation in a reasonable time and attestation of the same.

2. Cession by Treaty. Examples are Treaty of Paris, treaty between France and US ceding Louisiana to the latter and treaty between Russia and US ceding Alaska to the latter;

3. Prescription—which is a concept under the Civil Code. Territory may also be acquired through continuous and uninterrupted possession over a long period of time. However, in international law, there is no rule of thumb as to the length of time for acquisition of territory through prescription. In this connection, consider the Grotius Doctrine of immemorial prescription, which speaks of uninterrupted possession going beyond memory.

4. Conquest

(conquistadores)—this is no longer recognized,

inasmuch as the UN Charter prohibits resort to threat or use of force against the territorial integrity or political independence of any state; and

or

Subjugation

5. Accretion—another concept in the Civil Code. It is the increase in the land area of the State, either through natural means, or artificially, through human labor.

Philippine Archipelago:  

1. Treaty of Paris, December 10, 1898—Cession of the Philippine Islands by Spain to the United States;

2. Treaty between Spain and US at Washington, November 7, 1900—inclusion of Cagayan, Sulu and Sibuto;

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 87/12/2008

3. Treaty between US and GB, January 2, 1930—inclusion of Turtle and Mangsee Islands.

Other territories over which the Philippines has sovereignty or jurisdiction:

1. Batanes—(1935 Constitution);

2. Those contemplated under Article I, 1973 Constitution—belonging to the

Philippines by historic right or legal title; 3. 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.

“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.

Archipelago Doctrine—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 waters, islands is considered as one integrated whole. An archipelago is defined as 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 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.

2 Kinds of Archipelago:

1. Coastal Archipelago—situated close to a mainland and may be considered a part thereof.

2. Mid-Ocean Archipelago—situated in the ocean at such distance from the coasts of firm land. The Philippines is classified as mid-ocean archipelago just

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 97/12/2008

like Indonesia. The Philippines is not in any way connected physically with the Asia mainland.

Components of National Territory:

I. Terrestrial—land mass on which the inhabitants live;  

II. Fluvial—maritime;

a.

Internal or national waters—bodies of water within the land mass, among them are:

i.

Rivers—which may be:

 

1.

National

 

2.

Boundary—divides the territories of States

 

3.

International—flows thru various States

 

a. Thalweg Doctrine—for boundary rivers, in the absence of an agreement between the riparian states, the boundary line is laid on the middle of the main navigable channel.

b. Middle of the Bridge Doctrine—where there is a bridge over a boundary river, the boundary line is the

 

middle or center of the bridge.

 

ii.

Bays

and

gulfs—a

bay

is

a

well-marked

indentation

whose

penetration is in such proportion to the width of its mouth as to contain a land-locked waters and constitutes more than a curvature of the coast. Also referred to as juridical bay. The area must be as large as, or larger than, a semi-circle whose diameter is a line drawn across the mouth of such indentation, or if the mouth is less than 24 miles wide. e.g. Hudson Bay in Canada, one whose waters are considered internal because of the existence of a historic title.

iii.

Straits—narrow passageways connecting 2 bodies of water. If the distance between the 2 opposite coast is not more than 6 miles, they are considered internal waters.

In international law, when a strait within a country has a width of more than six (6) miles, the center lane in excess of the three (3) miles on both sides is considered international waters.

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 107/12/2008

iv. Canals—the most famous is the Suez Canal, which is neutralized, and the Panama Canal, which is open to everyone in times of war or peace.

b. Archipelagic waters—are the waters enclosed by the archipelagic baselines, regardless of their depth or distance from the coast.

Archipelagic State—a state made up wholly of one or two archipelagos. It may include other islands.

Straight Archipelagic Baseline—to determine the archipelagic waters, the state shall draw straight baselines connecting the outermost points of the outermost islands and drying reefs, provided that the ratio of the area of the water to the area of the land, including atolls, is between 1:1 and 9:1. The length of such baselines shall not exceed 100 nautical miles, except up to 3% of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum 125 miles. The baselines drawn should not depart, to any appreciable extent, from the general configuration of the archipelago. All the waters within the baselines shall then be considered internal waters. The breadth of the 12-mile territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall then be measured from the archipelagic baselines.

Vessels may be allowed innocent passage within the archipelagic waters, but this right may be suspended, after publication, in the interest of international security. The coastal state may also designate archipelagic sea lanes for continuous, unobstructed transit of vessels.

c. Territorial Sea—the belt of the sea located between the coast and the internal waters of the coastal state on the other hand, and the high seas on the other, extending up to 12 nautical miles from the low-water mark, or in the case of archipelagic states, from the baselines.

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 117/12/2008

Baseline—is a line from which the breadth of the territorial sea, the contiguous zone and the exclusive economic zone is measured in order to determine the maritime boundary of the coastal state. Types of baseline:

i. Normal Baseline Method

ii. Straight Baseline method

d. Contiguous Zone—extends up to 12 nautical miles from the territorial sea; this shall not exceed 24 nautical miles from the archipelagic baselines. The coastal state may exercise limited jurisdiction over the contiguous zone:

1. To prevent infringement of customs, fiscal immigration or sanitary laws and regulations within its territory or territorial sea; and

2. To punish infringement of the above laws and regulations committed within its territory.

e. Exclusive Economic Zone—shall not extend beyond 200 nautical miles from the archipelagic baselines.

f. Continental shelf—it is the seabed and subsoil of the submarine areas

extending beyond the Philippine territorial sea throughout the natural prolongation of the land territory. It extends up to:

i. The outer edge of the continental margin; or

ii. A distance of 200 nautical miles from the archipelagic baselines, whichever is the farthest.

The continental shelf does not form part of the Philippine territory. The Philippines has the sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources.

g. High Seas—treated as res communes, thus, not territory of any particular State. These are the waters which do not constitute the internal waters, archipelagic waters, territorial sea and exclusive economic zones of a state. They are beyond the jurisdiction and sovereign rights of States.

Freedom of navigation—refers to the right to sail ship on the high sea, subject to international law and the laws of the flag of the state.

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 127/12/2008

(See also discussion on UNCLOS)

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

Page 137/12/2008 ¥say
Page 137/12/2008
¥say

III.Aerial—this refers to the air space above the land and waters of the State.

(See Discussions under International Law)

ARTICLE II

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 147/12/2008

DECLARATION OF PRINCIPLES AND STATE POLICIES

Sec. 1, Article II The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.

(Relate this to Article XI)

1. Essential features: Representation and Renovation.

2. Manifestations:

Ours is a government of law and not of men (Villavicencio vs. Lukban, 39 Phil 778).

Rule of the majority. (Plurality in elections)

Accountability of public officials

Bill of rights

Legislature cannot pass irrepealable laws.

Separation of powers.

Republicanism

What is a republican form of government? It is a government of the people, by the people, and for the people, a representative government wherein the powers and duties of government are exercised and discharged for the common good and welfare.

Characteristics of a republican form of government:

1. The people do not govern themselves directly but through their representatives;

2. It is founded upon popular suffrage;

3. There is the tripartite system of the government, the mutual interdependence of the three departments of the government.

STATE—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)

State

 

Nation

-is a legal or juristic concept

-is an ethnic or racial concept

 

State

 

Government

-possesses a government to which a great

-merely

an

instrumentality

of

the

State

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 157/12/2008

body

of

inhabitants

render

habitual

through which the will of the State is implemented and realized.

obedience

 

Republican state—one constructed on the principle that the supreme power resides in the body of the people. Its purpose therefore is to guarantee against two (2) extremes:

1. On the one hand, monarchy and oligarchy;

2. On the other, pure democracy.

Elements of State:

1. People —the inhabitants of the State; the # of which is capable for self- sufficiency and self-defense; of both sexes for perpetuity.

a. Inhabitants;

b. Citizens;

c. Electors.

2. Territory—a fixed portion of the surface of the earth inhabited by the people of the State.

3. Government—the agency or instrumentality through which the will of the State is

formulated, expressed and realized.

Government of the Philippines—refers to the corporate governmental entity through which the functions of the government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government.

De Jure vs. De Facto

De Jure

De Facto

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.

Actually exercises the power or control but without legal title.

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

a.

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 167/12/2008

Forces— established and maintained by the military forces who invade and occupy a territory of

Forces—established and maintained by the military forces who invade and occupy a territory of the enemy in the course of war; c. Independent Government— established by the inhabitants of the country who rise in insurrection against the parent State.

Presidential vs. Parliamentary

Presidential

Parliamentary

There is separation of legislative and executive powers. The first is lodged in the President and the second is vested in Congress.

There is fusion of both executive and legislative powers in Parliament, although the actual exercise of the executive powers is vested in a Prime Minister who is chosen by, and accountable to, Parliament.

It embodies interdependence by separation and coordination.

It embodies interdependence by integration.

Unitary vs. Federal Government

Functions of the government:

a. Constituent—compulsory because constitutive of the society;

b. Ministrant—undertaken to advance the general interest of the society; merely

optional.

Doctrine of Parens Patriae—the government as guardian of the rights of the people may initiate legal actions for and in behalf of particular individual. (Government of the Philippine Islands vs. Monte de Piedad, 35 SCRA 738; Cabañas vs. Pilapil, 58 SCRA 94)

4. Sovereignty—the supreme and uncontrollable power inherent in a State by which

that State is governed.

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 177/12/2008

It is the right to exercise the functions of a State to the exclusion of any other

State.

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 or impliedly, as a member of the family of nations. 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 international law, which are considered to be automatically part of our own laws.

“Government of Laws and Not of Men.”sovereignty of the people also includes the concept that government officials have only the authority given them by law and defined by law, and such authority continues only with the consent of the people.

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.

Characteristics:

a. Permanence

b. Exclusiveness

c. Comprehensiveness

d. Absoluteness

e. Indivisibility

f. Inalienability

g. Imprescriptibility

Sovereignty, often referred to as Imperium—is the State’s authority to govern; it includes passing laws governing a territory, maintaining peace and order over it, and defending it against foreign invasion. It is the government authority possessed by the State expressed in the concept of sovereignty.

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 187/12/2008

Dominium—is the capacity of the State to own or acquire property such as lands and natural resources. (Lee Hong Hok vs. David, No. L-30389, December 27, 1972; Separate Opinion of Justice Kapunan in Cruz vs. Secretary of DENR, G.R. No. 135385, December 2000)

It necessarily includes the power to alienate what is owned. It was the foundation for the early Spanish decrees embracing the feudal theory of jura regalia that all lands were held from the Crown.

Effect of Belligerent Occupation—there is no change in sovereignty. However, political laws, except those of treason, are suspended; municipal laws remain in force unless changed by the belligerent occupant.

Principle of Jus Postliminiumat 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, No. L049, November 12, 1945)

Effect of Change of Sovereignty—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 Revolutionary Government—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)

Jurisdiction—is the manifestation of sovereignty. Territorial—power of the State over persons and things within its territory subject to its control and protection.

a.

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 197/12/2008

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.

c. Extraterritorial—power of the State over persons, things or acts beyond its territorial limits by reason of their effects to its territory.

Sec. 2, Article II (Incorporation Clause) The Philippine 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.

Three (3) parts:

1. Renunciation of war—the power to wage a defensive war is of the very essence of sovereignty;

2. Adoption of the principles of international law;

3. Adherence to a policy of peace, equality, justice, freedom, cooperation & amity.

The second part is nothing more than a formal acceptance of a principle to which all civilized nations must conform.

The third part is called the “selfish policy”—the guiding principle of Philippine foreign policy is the national interest. However, this is tempered with concern for “equality, peace, freedom and justice.

Section 23 (1), Article VI: The Congress, by a vote of two-thirds of both Houses in join session assembled, voting separately, shall have the sole power to declare the existence of a state of war.

Doctrine of Incorporationthe doctrine where the generally accepted principles of international law are made part of the law of the land either by express provision of the Constitution or by means of judicial declaration or fiat. The doctrine is applied whenever municipal tribunals or local courts are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the Constitution or statute of a State.

Efforts should first be exerted to harmonize them so as to give effect to both. In case of conflict between international law and municipal law, the latter shall prevail.

However, the doctrine dictates that rules of international law are given equal standing with, and are not superior to, national legislative enactments.

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 207/12/2008

Lex posterior derogate priori—in States where the constitution is the highest law of the land, both statutes and treaties may be invalidated if they are in conflict with the Constitution. (Secretary of Justice vs. Lantion, G.R. No. 139465, January 18,

2000)

Philip Morris, Inc. vs. CA, the fact that the 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.

Doctrine of Autolimitation— It is the doctrine where the Philippines adheres to principles of international law as a limitation to the exercise of its sovereignty.

What war does the Philippines renounce? The Philippines renounces an aggressive war because of its membership in the United Nations whose charter renounces war as an instrument of national policies of its member States.

Sec. 3, Article II (Civilian Supremacy Clause) 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 Clause

Sec. 18, Art. VII—installation of the President as the highest civilian authority, as the commander-in-chief of the AFP—external manifestation that civilian authority is supreme over the military.

Sec. 5(1), Art. XVI—members of the AFP swear to uphold and defend the Constitution, which is the fundamental law of the civil government. Civilian supremacy is not a guaranteed supremacy of civilian officers who are in power but of supremacy of the sovereign people. The Armed Forces, in this sense, “is the protector of the people and the State”.

Sec. 6, Article XVI—The State shall establish and maintain one police force, which

shall be national in scope and civilian in character, to be administered and controlled by

a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law.

IBP vs. Zamora, G.R. No. 141284, August 15, 2000, the deployment of the

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 217/12/2008

Marines does not constitute a breach of the civilian supremacy clause. The calling of the marines in this case constitutes permissible use of military asset for civilian law enforcement. x x x The limited participation of the Marines is evident in the provisions of the Letter of Instruction (LOI) itself, which sufficiently provides the metes and bounds of the Marines’ authority. It is noteworthy that the local police forces are the ones charge of the visibility patrols at all times, the real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-Marines joint visibility patrols. Under the LOI, the police forces are tasked to brief or orient the soldiers on police patrol procedures. It is their responsibility to direct and manage the deployment of the marines. It is, likewise, their duty to provide the necessary equipment to the Marines and render logistic support to these soldiers. In view of the foregoing, it cannot be properly argued that military authority is supreme over civilian authority. It is worth mentioning that military assistance to civilian authorities in various forms persists in Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the assistance of the military in the implementation and execution of certain traditionally “civil” functions. x x x Some of the multifarious activities wherein military aid has been rendered, exemplifying the activities that bring both the civilian and the military together in a relationship of cooperation are:

1. Elections;

2. Administration of the Philippine National Red Cross;

3. Relief and rescue operations during calamities and disasters;

4. Amateur sports promotion and development;

5. Development of the culture and the arts;

6. Conservation of the natural resources;

7. Implementation of the agrarian reform program;

8. Enforcement of customs laws;

9. Composite civilian-military law enforcement activities;

10. Conduct of licensure examinations;

11. Conduct of nationwide test for elementary and high school students;

12. Anti-drug enforcement activities;

13. Sanitary inspections;

14. Conduct of census work;

15. Administration of the Civil Aeronautic Board;

16. Assistance in installation of weather forecasting devices;

17. Peace and order policy formulation in local government units.

This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and, yet, never before questioned. What we have here is a mutual support and cooperation between the military and civilian authorities, not derogation of civilian supremacy.

Sec. 4, Article II The prime duty of the Government is to serve and protect the people. The

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 227/12/2008

Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service.

Does the Philippines renounce defensive war? No, because it is duty bound to defend its citizens. Under the Constitution, the prime duty of the government is to serve and protect the people.

Posse Commitatus—it is the power of the state to require all able-bodied citizens to perform civic duty to maintain peace and order.

In People vs. Lagman, 66 Phil. 13, the accused in this case, prosecuted for failure to register for military service under the National Defense Act, assailed the validity of the Act. The Supreme Court upheld the law on the basis of the compulsory military and civil service provision of then 1935 Constitution. It said that: “x x x. The duty of the Government to defend the State cannot be performed except through an army. To leave the organization of an army to the will of the citizens would be to make this duty to the Government excusable should there be no sufficient men who volunteer to enlist therein…x x x the right of the Government to require compulsory military service is a consequence of its duty to defend the State and is reciprocal with its duty to defend the life, liberty, and property of the citizen. x x x.”

Sec. 5, Article II 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.

Right to bear arms: It is statutory and not a constitutional right. The license to carry a firearm is neither a property nor a property right. Neither does it create a vested right. Even if it were a property right, it cannot be considered absolute as to be placed beyond the reach of police power. The maintenance of peace and order, and the protection of the people against violence are constitutional duties of the State, and the right to bear firearm is to be construed in connection and in harmony with these constitutional duties. (Chavez vs. Romulo, G.R. No. 157036, June 9, 2004)

Sec. 6, Article II The separation of Church and State shall be inviolable.

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 237/12/2008

The State should not use its money and coercive power to establish religion. It should not support a particular religion. The State is prohibited from interfering with purely ecclesiastical affairs. But it does not mean that there is total or absolute separation. The better rule is symbiotic relations between the church and State.

Constitutional provisions evidencing the Separation of Church and State:

1. Sec. 6, Art. II

2. Sec. 5, Art. III—No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil and political rights.

3. Sec. 2 (5), Art. IX-C—religious sect cannot be registered as political party

4. Sec. 5 (2), Art. VI—no sectoral representative from the religious sector

5. Sec. 28 (3), Art. VI—Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation.

6. Sec. 29 (2), Art. VI—No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.

7. Sec. 3 (3), Art. XIV—At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.

8. Sec. 4 (2), Art. XIV—Filipino ownership requirement for educational institutions, except those established by religious groups and mission boards.

Austria vs. NLRC and CPU Mission Corp. of the 7 th Day Adventists, G.R. No. 124382, August 16, 1999, an ecclesiastical affair involves the relationship between the church and its members and relates to matter of faith, religious doctrines, worship and governance of the congregation. Examples of these affairs in which the State cannot meddle are proceedings for excommunication, ordination of religious ministers, administration of sacraments, and other activities to which is attached religious significance. In this case, what is involved is the relationship of the church as an employer and the minister as an employee. It is purely secular and has no relation whatsoever with the practice of faith, worship or doctrine of the church.

STATE POLICIES

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 247/12/2008

Sec. 7, Article II (Independent Foreign Policy) 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.

The word “relations” covers the whole gamut of treaties and international agreements and other kinds of intercourse. This is the closest reference to military bases.

There is a marked antipathy in the Constitution towards foreign military presence in the country, or of foreign influence in general. (Lim vs. Executive Secretary, G.R. No. 151445, April 11, 2002)

Sec. 8, Article II (Policy of Freedom from Nuclear Weapons) The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.

Clearly, the ban is on nuclear arms—that is, the use and stockpiling of nuclear weapons, devices, and parts thereof. And this includes not only possessing, controlling and manufacturing nuclear weapons, but also nuclear test in our territory, as well as the use of our territory as dumping ground for radioactive waste. The provision, however, is not a ban on the peaceful uses of nuclear energy. Nor is it a ban on all “nuclear-capable vessels.” For a vessel to be banned, it is not enough that it is capable of carrying nuclear arms; it must actually carry nuclear arms. Nuclear weapons, if stored in our territory, may invite threats of foreign invasion and there is a danger to the life and limbs of the people because of the threat of explosion.

Sec. 9, Article II (Just and Dynamic Social Order) 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.

It reflects a preoccupation with poverty as resulting from structures that mire the people in a life of dependence.

Sec. 10, Article II

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 257/12/2008

(Social Justice) The State shall promote social justice in all phases of national development. (Read Sections 1 and 2 of Article XIII)

Sections 1&2 of Article XIII:

Section 1—The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.

Section 2—The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance.

The Constitution covers all phases of national development but with more emphasis not only on economic inequities but also on political and cultural inequities.

Sec. 11, Article II (Personal Dignity and Human Rights) The State values the dignity of every human person and guarantees full respect for human rights. (Read Sections 17-19 of Article XIII)

Section 12, Article II (The Family as Basic Social Institution) 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. (Read Article XV)

The family here is to be understood as a stable heterosexual relationship whether formalized by civilly recognized marriage or not. Calling the family “a basic social institution” is an assertion that the family is anterior to the State and is not a creature of the State. The categorization of the family as “autonomous” is meant to

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 267/12/2008

protect the family against instrumentalization by the State.

Protection of the Unborn— The unborn’s entitlement to protection begins “from conception”, i.e., from the moment of conception. The intention is to protect life from its beginning, and the assumption is that human life begins at conception and that conception takes place at fertilization. The provision is intended to prevent the State from adopting the doctrine in US Supreme Court decision of Roe vs. Wade, 410 US 113, which liberalized abortion laws up to the 6 th month of pregnancy by allowing abortion at the discretion of the mother any time during the first 6 months when it can be done without danger to the mother.

Natural Right and Duty of Parents Parents are entitled to the support of laws designed to aid them in the discharge of their responsibility. The provision also highlights the inherent duty of the State to act as parens patriae and to protect the right of persons and individuals who, because of age or inherent incapacity, are in an unfavorable position vis-à-vis other parties.

People vs. Larin, G.R. No. 128777, October 7, 1998, RA 7610, which penalizes child prostitution and other sexual abuses, was enacted in consonance with the policy of the State to “provide special protection to children from all forms of abuse”, thus, the Court grants the victim full vindication and protection granted under the law.

Section 13, Article II Vital Role of the Youth in Nation-Building 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.

Section 14, Article II (Equality of Women and Men) The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men. (Read Section 14, Article XIII)

PT&T Co. vs. NLRC, G.R. No. 118978, May 23, 1997, the SC held that the petitioner’s

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 277/12/2008

policy of not accepting or considering as disqualified from work any woman worker who contracts marriage, runs afoul of the test of, and the right against, discrimination, which is guaranteed all women workers under the Constitution. While a requirement that a woman employee must remain unmarried may be justified as a “bona fide occupational qualification” where the particular requirements of the job would demand the same, discrimination against married women cannot be adopted by the employer as a general principle.

Section 15, Article II (Right to Health) The State shall protect and promote the right to health of the people and instill health consciousness among them. (Read Sections 11-13 of Article XIII as an aspect of Social Justice)

Section 16, Article II (Right to A Balanced and Healthful Ecology) 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 vs. Factoran, Jr., 224 SCRA 792, it was held that the 34 minors duly joined by their respective parents pleading the cause of “inter-generational responsibility” and “inter-generational justice”, had a valid cause of action in questioning the grant of Timber Licensing Agreements (TLAs) for commercial logging purposes. The minors filed the action for themselves as representing “their generation as well as generations yet unborn”. The SC, on the basis of Section 16, Article II linked with the right to health, recognized a “right to a balanced and healthful ecology” and “the correlative duty to refrain from impairing the environment”.

C&M Timber Corporation vs. Alcala, G.R. No. 111088, June 13, 1997, on the issue that the “total log ban” is a new policy which should be applied prospectively and not affect the rights of petitioner vested under the Timber Licensing Agreement (TLA), the Sc held that this is not a new policy but a mere reiteration of the policy of conservation and protection the right to a balanced and healthful ecology.

Section 17, Article II 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.

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 287/12/2008

(Read also Section 2, Article XIV)

In PRC vs. De Guzman, G.R. No. 144681, June 21, 2004, while it is true that the SC has upheld the constitutional right of every citizen to select a profession or course of study subject to fair, reasonable, and equitable admission and academic requirements, the exercise of this right may be regulated pursuant to the police power of the State to safeguard health, morals, peace, education, order, safety and general welfare. Thus, persons who desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an examination as a prerequisite to engaging in their chosen careers. This regulation assumes particular pertinence in the field of medicine, in order to protect the public from the potentially deadly effects of incompetence and ignorance.

PMMS, Inc. vs. CA, 244 SCRA 770, the Court said that the requirement that a school must first obtain government authorization before operating is based on the State policy that educational programs and/or operations shall be of good quality and, therefore, shall at least satisfy minimum standards with respect to curricula, teaching staff, physical plant and facilities and administrative and management viability.

Section 18, Article II The State affirms labor as a primary social economic force. It shall protect the right of the workers and promote their welfare.

In the case of Bernardo vs. NLRC, G.R. No. 122917, July 12, 1999, the SC held that the Magna Carta for Disabled Persons mandates that qualified disabled persons be granted the same terms and conditions of employment as qualified able- bodied employees; thus, once hey have attained the status of regular workers, they should be accorded all the benefits granted by law, notwithstanding written or verbal contracts to the contrary. This treatment is rooted not merely in charity or accommodation, but in justice for all.

Section 19, Article II The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 297/12/2008

The Constitution does not necessarily rule out the entry of foreign investments, goods and services. It contemplates neither “economic seclusion” nor “mendicancy in the international community”.

Aside from envisioning a trade policy based on “equality and reciprocity”, the fundamental law encourages industries that are “competitive in both domestic and foreign markets,” thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor of the gradual development of robust industries that can compete with the best in the foreign markets. (Tañada vs. Angara, 272 SCRA 18)

Section 20, Article II The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments. (Read Article XII)

Doctrine of Free Enterprise—

Association of Philippine Coconut Desiccators vs. PCA, G.R. No. 110526, February 10, 1998, the SC said that although the Constitution enshrines free enterprise as a policy, it nevertheless reserves to the Government the power to intervene whenever necessary for the promotion of the general welfare as reflected in Sections 6 & 19 of Article XII. Pest Management Association of the Philippines vs. Fertilizer and Pesticide Authority, G.R. No. 156041, February 21, 2007 and Pharmaceutical and Health Care Association of the Philippines vs. Sec. Duque III, G.R. No. 173034, October 9, 2007, it was held that despite the fact that “our present Constitution enshrines free enterprise as a policy”, it nevertheless reserves to the Government the power to intervene whenever necessary to promote the general welfare. Free enterprise does not call for removal of ‘protective regulations’. It must be clearly explained and proven by competent evidence just exactly how such protective regulation would result in the restraint of trade.

Section 21, Article II The State shall promote comprehensive rural development and agrarian reform.

Rural development encompasses a broad spectrum of social, economic, human, cultural, political and even industrial development.

(See the case of Association of Small Landowners of the Philippines vs. Secretary of Agrarian Reform, 175 SCRA 343)

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 307/12/2008

Section 22, Article II The state recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development. [Read Section 5(2), Article VI; Section 5, Article XII; Section 17, Article XIV]

Section 23, Article II The State shall encourage non-governmental, community-based, or sectoral organizations that promote the welfare of the nation. (Read Sections 15-16 of Article XIII)

Section 24, Article II The State recognizes the vital role of communication and information in nation- building. (Read Sections 10-11, Art. XVI; Sec. 23, Art. XVIII)

Section 25, Article II The State shall ensure the autonomy of local governments. (Read Article X)

Basco vs. PAGCOR, 197 SCRA 52, The SC held that the local autonomy under the 1987 Constitution simply means “decentralization”, and does not make the local governments sovereign within the State or an imperium in imperio.

Limbonas vs. Mangelin, 170 SCRA 786

Decentralization of Administration

Decentralization of Power

-delegation of administrative powers to the local government unit in order to broaden the base of governmental powers.

-abdication by the national government of governmental powers

Lina vs. Pano, G.R. No. 129093, August 30, 2001, the Sc said that the basic relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract from that policy, Congress retains control of the LGUs although in a significantly reduced degree now under our previous Constitutions. The power to create still includes the power to destroy. The power to

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 317/12/2008

grant still includes the power to withhold or recall. True there are notable innovations in the Constitution, like the direct conferment on the LGUs of the power to tax which cannot now be withdrawn by mere statute. By and large, however, the national legislature is still the principal of LGUs, which cannot defy its will or modify or violate it. Ours is still a unitary form of government, not a federal state. Being so, any form of autonomy granted to local governments will necessarily be limited and confined within the extent allowed by the central authority.

Judge Dadole vs. COA, G.R. No. 125350, December 3, 2002, even as we recognize that the Constitution guarantees autonomy to LGUs, the exercise of local autonomy remains subject to the power of control by Congress and the power of general supervision by the President. xxx The President can only interfere in the affairs and activities of a LGU if he finds that the latter had acted contrary to law. The President or any of his alter egos, cannot interfere in local affairs as long as the concerned LGU acts within the parameters of the law and the Constitution. Any directive, therefore, by the President or any of his alter egos seeking to alter the wisdom of a law-conforming judgment on local affairs of a LGU is a patent nullity, because it violates the principle of local autonomy, as well as the doctrine of separation of powers of the executive and legislative departments in governing municipal corporations.

Section 26, Article II The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.

Pamatong vs. COMELEC, G.R. No. 161872, April 13, 2004, the SC said that this provision does not bestow a right to seek the Presidency; it does not contain a judicially enforceable constitutional right and merely specifies a guideline for legislative action. The provision is not intended to compel the State to enact positive measures that would accommodate as many as possible into public office. The privilege may be subjected to limitations. One such valid limitation is the provision of the Omnibus Election Code on nuisance candidates.

Section 27, Article II The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 327/12/2008

Section 28, Article II 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. ----PRINCIPLE OF TRANSPARENCY—

DOCTRINE OF SEPARATION OF POWERS

This principle operated as an implicit limitation on legislative powers as on the two other powers. In essence, separation of powers means the legislation belongs to Congress, execution to the executive, settlement of legal controversies to the judiciary. Each is prevented from invading the domain of the others. But the separation is not total. The system allows for “checks and balances” the net effect of which being that, in general, no one department is able to act without the cooperation of at least one of the other departments.

Purpose: To prevent concentration of powers in one department and thereby to avoid

tyranny. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of governmental powers among the three departments, to save the people from autocracy.

1. To secure action

2. To forestall overaction

3. To prevent despotism

4. To obtain efficiency

In La Bugal-B’Laan Tribal Association vs. Ramos, G.R. No. 127882, December 1, 2004, the court restrained itself from intruding into policy matters to allow the President and Congress maximum discretion in using mineral resources of our country and in securing the assistance of foreign groups to eradicate the grinding poverty of our people and answer their cry for viable employment opportunities in the country. “The Judiciary is loath to interfere with the due exercise by co-equal branches of government of their official functions.” Let the development of mining industry be the responsibility of the political branches of the government. The questioned provisions of RA 7942 (Philippine Mining Act of 1995) are not unconstitutional.

In Maceda vs. Vasquez, 221 SCRA 464, in the absence of any administrative action taken against the RTC Judge by the SC with regard to the former’s certificate of service, the investigation conducted by the Ombudsman encroaches into the SC’s power of administrative supervision over all courts and its personnel, in violation of the

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 337/12/2008

doctrine of separation of powers.

Principle of Blending of Powers: Instances when powers are not confined exclusively within one department but are assigned to or shared by several departments.

Principle of Checks and Balances: This allows one department to resist encroachments upon its prerogative or to rectify mistakes or excesses committed by the other departments. The first and safest criterion to determine whether a given power has been validly exercised by a particular department is whether or not the power has been

the

constitutionally

conferment is usually done expressly. However, even in the absence of express conferment, the exercise of the power may be justified under the doctrine of necessary implication. The grant of express power carried with it all other powers that may be reasonably inferred from it.

conferred

department

claiming

its

exercise—since

upon

the

Justiciable question- implies a given right, legally demandable and enforceable, an act or omission violative of such right, and a remedy granted and sanctioned by law for said breach of right. (Casibang vs. Aquino, 92 SCRA 642)

THE INHERENT POWERS OF THE STATE

1. Police Power

2. Power of Eminent Domain

3. Power of Taxation

Similarities:

1. Inherent in the State, exercised even without need of express constitutional

grant.

2. Necessary and indispensable; State cannot be effective without them.

3. Methods by which State interferes with private property.

4. Presupposes equivalent compensation.

5. Exercised primarily by the legislature.

Distinctions:

Police Power

Eminent Domain

Taxation

Regulates both liberty and property

Affects property rights

affects property rights

may be exercised only by

may even be exercised by

may be exercised only by

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 347/12/2008

government; cannot be delegated to administrative body

private entities

government; cannot be delegated to administrative body

property taken is usually noxious(unpleasant and harmful) or intended for noxious purpose and may thus be destroyed

the property is wholesome and devoted to public use or purpose

the property is wholesome and devoted to public use or purpose

compensation

is

the

compensation is the full and fair equivalent of the property taken

it is the protection and/or public improvements instituted by government for the taxes paid

intangible, altruistic feeling

that the individual has contributed to the public good

Limitations: Generally, the Bill of Rights, although in some cases the exercise of the power prevails over specific constitutional guarantees. The courts may annul the improvident exercise of police power.

These powers must not be exercised arbitrarily, to the prejudice of Bill of Rights.

In Ericta vs. City Government of Quezon City, 122 SCRA 759, the City Government of QC was not exercising police power when they required private cemetery owners to reserve 6% of the burial lots for pauper’s burial ground. The SC held that in police power, the property to be taken is to be destroyed. The 6% are private property of the cemetery owners. This is a taking of private property. Sec. 9, Art. III: “Private property shall not be taken for public use without just compensation.” Clearly, this is an invalid exercise of police power. The City was made to pay the owners just compensation.

In Philippine Press Institute vs. COMELEC, 244 SCRA 272, Sec. 2 of COMELEC Resolution No. 2772, which mandates newspapers of general circulation in every province or city to provide free print space of not less than ½ page as COMELEC space, was held to be an invalid exercise of police power there being no showing of the existence of a national emergency or imperious public necessity for the taking of print space, nor that the resolution was the only reasonable and calibrated response to such necessity. This was held to be an exercise of the power of eminent domain, albeit

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 357/12/2008

invalid, because the COMELEC would not pay for the space to be given to it by the newspapers.

Police power and power of taxation—cannot be delegated to administrative bodies. Police power and power of eminent domain both involved taking. They differ in purpose. Police power—to destroy; because the property is harmful, obnoxious, poses a risk to the public. Power of eminent domain—only private property is the subject of taking; the purpose is to convert the private property to public use.

POLICE POWER— It is the power of promoting public welfare by restraining and regulating the use of liberty and property. It is the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and the general welfare. It is the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people (now common good). (Binay vs. Domingo, 201 SCRA 508)

It has been described as “the most essential, insistent and the least limitable of powers, extending as it does to all the great public needs.” It is the power vested in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. (Carlos Superdrug Corp. vs. DSWD, G.R. No. 166494, June 29, 2007)

Cabrera vs. Lapid, G.R. No. 129098, December 6, 2006, a careful reading of the questioned Resolution reveals that the Ombudsman dismissed petitioner’s criminal

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 367/12/2008

complaint because respondents had validly resorted to the police power of the State when they effected the demolition of the illegal fishpond in question following the declaration thereof as a nuisance per se. in the words of the Ombudsman, “those who participated in the blasting of the subject fishpond were only impelled by their desire to serve the best interest of the general public; for the good and the highest good.

Requisites (Limitations):

1. Lawful subject—the interests of the public in general as distinguished from

those of a particular class, require the exercise of this power.

2. Lawful means—the means employed are reasonably for the accomplishment of the purpose, and not unduly oppressive on individuals.

Affected with public interest”—an industry is subject to control for the public good; it has been considered as the equivalent of “subject to the exercise of police power”.

Construction: construed strictly and any doubt must be resolved against the grant.

Scope/Characteristics:

It is the most pervasive, least limitable, and the most demanding of the three powers. The justification is found in: salus populi est suprema lex (the welfare of the people is the supreme law) and sic utere tuo ut alienum non laedas (use your property so as not to impair others).

1. It cannot be bargained away through the medium of a treaty or a contract.

2. The taxing power may be used as an implement of police power

3. Eminent domain may be used as an implement to attain the police power objective (Association of Landowners vs. Secretary of Agrarian Reform, 175 SCRA 343).

4. In Ortigas & Co. vs. CA, G.R. No. 126102, December 4, 2000, non- impairment of contracts or vested rights clauses will have to yield to the superior and legitimate exercise by the State of the police power.

5. In PRC vs. De Guzman, G.R. No. 144681, June 21, 2004, the exercise of the constitutional right of every citizen to select a profession or course of study may be regulated pursuant to the police power of the State to safeguard health, morals, peace, education, order, safety, and the general welfare of the people. This regulation assumes particular pertinence in the field of medicine,

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 377/12/2008

to protect the public from the potentially dead effects of incompetence and ignorance.

In Chavez vs. Romulo, 431 SCRA 534, the right to bear arms is merely statutory privilege. The license to carry firearm is neither a property nor a property right. Neither does it create a vested right. A permit to carry outside one’s residence may be revoked at any time. Even if it were a property right, it cannot be considered as absolute as to be beyond the reach of the police power.

Who may exercise police power?

The power is inherently vested in Congress. However, they may validly delegate this power to the following:

1. the President

2. administrative bodies—public and quasi-public corporations

3. the lawmaking bodies of local government units

Local government units exercise the power under the general welfare clause.

CANORECO vs. Torres, G.R. no. 127249, February 27, 1998, while police power may be delegated to the President by law, RA 6939 and PD 260, as amended, do not authorize the President or any other administrative body, to take over the internal management of a cooperative. Accordingly, Memorandum Order No. 409, issued by the President, constituting an ad hoc committee to temporarily take over and manage the affairs of CANORECO is invalid.

In MMDA vs. Bel-Air Village Association, G.R. No. 135962, March 27, 2000, there is no provision in RA 7924 that empowers the MMDA or its council to “enact ordinance, approve resolutions and appropriate funds for the general welfare” of the inhabitants of Metro Manila. Thus, MMDA may not order the opening of Neptune St. in the Bel-Air Subdivision to public traffic, as it does not possess delegated police power.

Section 11, Article Xthe Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services requiring coordination.

MMDA is not a special metropolitan political subdivision.

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 387/12/2008

However, in MMDA vs. Garin, G.R. No. 130230, April 15, 2005, although the law (RA 7924) does not grant the MMDA the power to confiscate and suspend or revoke drivers’ licenses without need of any legislative enactment, the same law vests

the MMDA the duty to enforce existing traffic rules and regulations. Thus, where there is a traffic law or regulation validly enacted by the legislature or those agencies to whom legislative power has been delegated, the MMDA is not precluded—and in fact is duty- bound—to confiscate and suspend or revoke drivers’ licenses in the exercise of its mandate of transport and traffic management, as well as the administration and implementation of all traffic enforcement operations, traffic engineering services and traffic education programs. Additional Limitations (When exercised by delegate):

a. express grant by law

b. within territorial limits (for local government units, except when exercised to protect water supply)

c. must not be contrary to law

For municipal ordinance to be valid:

1. it must not contravene the Constitution or any statute;

2. it must not be unfair or oppressive;

3. it must not be partial or discriminatory;

4. it must not prohibit, but may regulate, trade;

5. it must not be unreasonable; and

6. it must be general in application and consistent with public policy.

In City of Manila vs. Judge Laguio, G.R. No. 118127, April 12, 2005, the SC declared as an invalid exercise of the police power the City of Manila Ordinance No. 7783, which prohibited “the establishment or operation of businesses providing certain forms of amusement, entertainment, services and facilities in the Ermita-Malate area”, for being contrary to the Constitution, infringing the guarantees of due process and equal protection of the laws.

In Centeno vs. Villalon-Pornillos, 236 SCRA 197 (1994), solicitation for religious purposes may be subject to proper regulation by the State in the exercise of police power.

In Acebedo Optical Company, Inc. vs. CA, 329 SCRA 314 (2000), the issuance of business licenses and permits by a municipality or city is essentially

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 397/12/2008

regulatory in nature. The authority, which devolved upon local government units, to issue or grant such licenses or permits, is essentially in the exercise of the police power of the State within the contemplation of the general welfare clause of the LGC.

The implementation of the Comprehensive Agrarian Reform Law (CARL) is an exercise of police power and the power of eminent domain. To the extent that the CARL prescribes retention limits to the landowners, there is an exercise of police power for the regulation of private property in accordance with the Constitution. But where, to carry out such regulation, the owners are deprived of lands they own in excess of the maximum area allowed, there is also taking under the power of eminent domain. The taking contemplated is not a mere limitation of the use of the land. What is required is the surrender of the title to and physical possession of the said excess and all beneficial rights accruing to the owner in favor of the farmer beneficiary. The Bill of rights provides that “no person shall be deprived of life, liberty and property without due process of law.” The CARL was not intended to take away property without due process of law. The exercise of power of eminent domain requires that due process be observed in the taking of private property. [Roxas and Co., vs. CA, 321 SCRA 106 (1999)]

Republic vs. Manila Electric Company, G.R. No. 141314, November 15, 2002, the regulation of rates to be charged by public utilities is founded upon the police power of the State and statutes prescribing rules for the control and regulations of public utilities are a valid exercise thereof. When a private property is used for a public purpose and is affected with public interest, it ceases to be juris privati only and becomes subject to regulation. The regulation is to promote the common good. Submission to regulation may be withdrawn by the owner by discontinuing use; but as long as the use of the property is continued, the same is subject to public regulation. In regulating rates charged by public utilities, the State protects the public against arbitrary and excessive rates while maintaining the efficiency and quality of services rendered. However, the power to regulate rates does not give the State the right to prescribe rates which are so low as to deprive the public utility of a reasonable return on investment.

Philippine Press Institute (PPI) vs. COMELEC, 244 SCRA 272, Section 2 of COMELEC Resolution No. 2772, which mandates newspapers of general circulation in every province or city to provide free print space of not less than ½ page as COMELEC space, was held to be invalid exercise of police power there being no showing of the existence of national emergency or imperious public necessity for the taking of print

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 407/12/2008

space, nor that the resolution was the only reasonable and calibrated response to such necessity.

Public purpose and use has broader concept now. It now includes VICARIOUS BENEFITS that society may derive from a particular measure.

e.g. CONCERN FOR THE POOR—SC recognized this as one for public purpose and use.

POWER OF EMINENT DOMAIN— also known as the power of expropriation The power of eminent domain is the power of the State to forcibly take private property for public use upon payment of just compensation.

It is the right or power of a sovereign state to appropriate private property to particular uses to promote public welfare.

It is government’s right to appropriate, in the nature of a compulsory sale to the State, private property for public use or purpose. (Moday vs. CA, 268 SCRA 586)

The ultimate right of the sovereign power to appropriate, not only the public, but even the private property of all citizens within the territorial sovereignty, for public purpose.

Power of Eminent Domain

Destruction Due to Necessity

involves public rights

involves private rights such as self- preservation and self-defense

the property is converted to public use

there is no need for the conversion to public use

there must be payment of just compensation

no need for just compensation

undertaken by the State

may be validly undertaken even by private individuals

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 417/12/2008

Object of Expropriation:

1. anything that comes under the dominion of man

2. real, personal, tangible and intangible

3. property right

4. churches and other religious properties

5. property already devoted to public use

Except: money- because compensation is also money Who may exercise? Generally, the legislature, but also upon valid delegation to:

1. the President;

2. lawmaking bodies of LGUs;

3. administrative bodies—public and quasi-public corporations

4. Private enterprises performing public services.

In the case of Republic vs. CA, G.R. No. 146587, July 2, 2002, the power of eminent domain must, by enabling law, be delegated to local governments by the national legislature, and thus, can only be as broad as the real authority would want it to be. The grant of the power to local government units under RA 7160 cannot be understood as equal to the pervasive and all encompassing power vested in the legislative branch of government.

JIL School Foundation vs. Municipality of Pasig, G. R. No. 152230, August 9, 2005—Sec. 19, of the LGC requires the LGU to tender a prior written definite and valid offer to acquire the property before the filing of the complaint for eminent domain.

Filstream Int’l Inc. vs. CA, 284 SCRA 716the exercise of the power of eminent domain is clearly superior to the final and executor judgment rendered by the court in an ejectment case.

RP vs. PLDT, 26 SCRA 620services were considered embraced in the concept of property subject to taking under the power of eminent domain. Republic, in the exercise of the sovereign power of eminent domain, may require the telephone company to permit interconnection of the government telephone system and that of the PLDT, as the needs of government service may require, subject to the payment of just compensation to be determined by the court.

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 427/12/2008

Where Expropriation Suit Is Filed:

In the Regional Trial Court—because it is incapable of pecuniary estimation

Requisites:

1. Necessity—when exercised by:

a. Congress—it is a political question; (Municipality of Meycauayan, Bulacan vs. IAC, 157 SCRA 640)

b. Delegate—the determination of whether there is a genuine necessity for the exercise is a justiceable question (Republic vs. La Orden de Po. Benedictinos, 1 SCRA 649).

The RTC has the power to inquire to the legality of the exercise of the right of eminent domain and to determine whether there is a genuine necessity for it (Bardillon vs. Brgy. Masili of Calamba, Laguna, G.R. No. 146886, April 30, 2003).

Lagcao vs. Judge Labra, G.R. No. 155746, October 13, 2004there was no showing at all why petitioners’ property was singled out for expropriation by the city ordinance or what necessity impelled the particular choice or selection. The ordinance stated no reason for the choice of petitioners’ property as the site of a socialized housing project.

2. Private property—all private property capable of ownership may be expropriated except money and choses in action; may include services. (Republic vs. PLDT, 26 SCRA 620)

In City of Manila vs. Chinese Community, 40 Phil. 349, a cemetery open to the public was already in public use and no part of the ground could be taken for other public uses under a general authority. The City of Manila was without authority to expropriate the property. (The Congress itself should expropriate or there must be special grant.)

3. Taking— there is taking when:

a. The owner is actually deprived or dispossessed of his property;

b. There is practical destruction or material impairment of the value of the property;

c. The owner is deprived of the ordinary use of his property;

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 437/12/2008

d. The owner is deprived of jurisdiction, supervision and control of his property.

Requisites for a valid taking: (EMADO)

a. The expropriator must enter a private property;

b. Entry must be for more than a momentary period;

c. Entry must be under warrant or color of authority;

d. Property must be devoted to public use or otherwise informally appropriated or injuriously affected;

e. Utilization of the property must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property. (Republic vs. Castelvi, 58 SCRA 336)

The taking of private property may include the impairment of the use of the property for which it was intended. In US vs. Causby, 328 US 256, the flight of planes from a nearby military airport over plaintiff’s property below the navigable airspace resulting in the ruin of plaintiff’s chicken farm was considered compensable taking. So also were low landing and take-off flights which made nearby residential area unlivable (Griggs vs. Allegheny County, 369 US 84). This is taking in the constitutional sense.

Avenida, Rizal used to be the commercial center of Manila. However, when the Light Railway Transit (LRT) was built, the commercial value of Avenida was greatly diminished. The shops and stores had to close. The owners of these establishments suffered losses because of the operation of the LRT along Avenida, Rizal. Are they entitled to be paid just compensation? No. SC held that the kind of injury or loss that one must suffer that will justify the payment of just compensation must be a special kind of injury or loss as in the case of Causby. If the injury or loss that one suffered is one which he suffered together with the rest of the community, his only compensation in such a case is the altruistic feeling that somehow he is able to contribute to the common good.

CANORECO vs. CA, G.R. No. 109338, November 20, 2000, The owner of the property cut the electric lines alleging that it impaired him of the use of his property. The SC held that the property owner was not justified in cutting the electric lines. His property becomes the servient estate subject to the encumbrance, and the acquisition of an easement of right of way filed by an electric power company for the construction of transmission lines falls within the purview of the power of eminent domain. However,

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 447/12/2008

since there was an impairment of the use of the property, he is entitled to the payment of just compensation. The establishment of an easement is a form of compensable taking. In NAPOCOR vs. Sps. Gutierrez, G.R. No. 60077, January 18, 1991, the owner of the land was awarded full compensation against the NAPOCOR’s argument that the owners were not totally deprived of the use of the land and could still plant the same crops as long as they did not come into contact with the wires. The Court said: “the right of way easement perpetually deprives defendants of their proprietary rights as manifested by the imposition by the plaintiff upon defendants that below said transmission lines no plant higher than 3 meters is allowed. Furthermore, because of the high-tension current conveyed through the transmission lines, danger to life and limbs that may be caused beneath said wires cannot altogether be discounted, and to cap it all, plaintiff only pays the fee to defendant once, while the latter shall continually pay the taxes due on said affected portion of their property.

In People vs. Fajardo, 104 Phil. 44, a municipal ordinance prohibiting a building which would impair the view of the plaza from the highway was considered taking. The property owner was held to be entitled to payment of just compensation.

In Velarma vs. CA, 252 SCRA 400, the owner of the property can recover possession of the property from squatters, even if he agreed to transfer the property to the Government, until the transfer is consummated or the expropriation case is filed.

Taking under Eminent Domain Proceeding

Taking under Police Power

Only private properties may be taken

All properties are subject to taking

The private property is taken in order to convert it to public use

The purpose of taking is to destroy the property because it is harmful or obnoxious to the public.

Philippine Press Institute (PPI) vs. COMELEC, 244 SCRA 272, Section 2 of COMELEC Resolution No. 2772, which mandates newspapers of general circulation in every province or city to provide free print space of not less than ½ page as COMELEC space, was held to be an exercise of power of eminent domain, albeit invalid, because the COMELEC would not pay for the space to be given to it by the newspapers.

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 457/12/2008

TELEBAP, Inc. vs. COMELEC, 289 SCRA 1998, the constitutionality of Sec. 92 of BP 881 (requiring radio and television station owners and operators to give to the COMELEC radio and television time free of charge) was challenged on the ground that it violated the due process clause and the eminent domain provision of the Constitution

by taking airtime from radio and television broadcasting stations without payment of just compensation. The SC held that all broadcasting, whether by radio or by television stations, is licensed by the government. Airwaves frequencies have to be allocated as there are more individuals who want to broadcast than there frequencies to assign. A franchise is thus a privilege subject, among other things, to amendment by Congress in accordance with the constitutional provision that “any such franchise or right granted x x

x shall be subject to amendment, alteration or repeal by the Congress when the

common good so requires” (Art. XII, Sec.11). In the granting of the privilege to operate broadcast stations and thereafter supervising radio and television stations, the State spends considerable public funds in licensing and supervising such stations. It would be strange if it cannot even require the licensees to render public service by giving free airtime. x x x As radio and television broadcast stations do not own the airwaves, no private property is taken by the requirement that they provide airtime to the COMELEC.

 

PPI vs. COMELEC

TELEBAP vs. COMELEC

there was taking of property

there was no taking of private property airwaves are scarce resources, the use is regulated by the State franchise (privilege) is issued by the State (Art. XII, Sec. 11)

newspaper space is the private property

of

the newspaper owners

print media do not enjoy privilege

Shifting argument alleged in TELEBAP: both PPI and TELEBAP are media of communication

and information. Equal protection clause was raised as an issue. The SC ruled that equal protection clause does not guarantee absolute equality. There may be classification. Persons or things ostensibly similarly situated may, nonetheless, be treated differently if there is a basis for valid classification.

4. Public

use—“public

interest”;

“public

benefit”;

“public

welfare”;

“public

convenience” (Reyes vs. NHA, G.R. No. 147511, January 20, 2003).

The general concept—meeting public need or public exigency; may include indirect public benefit or advantage.

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 467/12/2008

In Estate of Salud Jimenez vs. PEZA, 349 SCRA 240, public use is whatever may be beneficially employed for the general welfare.

It has been broadened to include not only uses directly available to the public but also those which redound to their indirect benefit; that only a few would actually benefit from the expropriation of the property does not necessarily diminish the essence and character of public use. (Manosca vs. CA, 252 SCRA 412)

In Filstream Int’l Inc. vs. CA, 284 SCRA 716, the fact that the property is less than ½ hectare and that only a few could actually benefit from the expropriation does not diminish its public use character, inasmuch as “public use” now includes the broader notion of indirect public benefit or advantage, including, in particular, urban land reform and housing.

By express legislative authority granted by Congress in Sec. 19, RA 7160, LGUs may expropriate private property for public use, or purpose, or welfare, for the benefit of the poor and the landless. Thus, in Moday vs. CA, 268 SCRA 568, the SC held that the Sangguniang Panlalawigan of Agusan del Sur was without authority to disapprove Bunawan Municipal Resolution No. 43-89 because, clearly, the Municipality of Bunawan has authority to exercise the power of eminent domain and its Sanggguniang Bayan the capacity to promulgate the assailed resolution.

However, in the case of Municipacility of Parañaque vs. V.M. Realty Corporation, 292 SCRA 676, the SC declared that there was lack of compliance with Sec. 19 of RA 7160, where the Municipal Mayor filed a complaint for eminent domain over two (2) parcels of land on the strength of the resolution passed by the Sangguniang Bayan, because what is required by law is an ordinance and not mere resolution.

In Francia, Jr. vs. Municipality of Meycauayan, G.R. No. 170432, March 24, 2008, the Supreme Court held that the determination of a public purpose for the expropriated property is not a condition precedent before a court may issue a writ of possession. Once the requisite in Sec. 19 of the Local Government Code are satisfied, the issuance of the writ becomes a ministerial matter for the court.

5. Just Compensation—the full and fair market value of the property taken; it is the fair market value of the property. It is settled that the market value of the

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 477/12/2008

property is “that sum of money which a person, desirous but not compelled to buy, and an owner, willing but not compelled to sell, would agree on a price to be given and received therefor.”

Medium: money except: payment other than money (Association of Small Landowners vs. Secretary of Agrarian Reform, 175 SCRA 343), payment is allowed to be made partly in bonds, because under the CARP it deals with the revolutionary kind of expropriation.

The determination of just compensation in eminent domain cases is a judicial function and factual findings of the CA are conclusive on the parties and reviewable only when the case falls within the recognized exceptions. (NAPOCOR vs. San Pedro, G.R. No. 170945, September 26, 2006)

Land Bank vs. CA (and DAR vs. CA), 249 SCRA 149Sec. 16(e), RA 6657— the deposit of compensation must be in “cash” or in “Land Bank bonds” not in any other form, and certainly not in a “trust account”.

Reckoning point of market value of the property:

FMV at the date of: a) filing of the complaint; or b) the taking –whichever is earlier.

Rules in Just Compensation-Rule 67, Sec. 6:

1. Determine the actual or basic value of the property.

2. If entire property not expropriated:

Value of property damages (basic or actual)

-

consequential benefits

(CB)

+

(CD)

consequential

If consequential benefits exceed consequential damages, CB and CD should be disregarded because the BASIC VALUE of the property should be paid in every case.

Basic/market value—the price that may be agreed upon by the parties willing but not compelled to enter into a contract of sale.

Factors to be considered:

Cost of acquisition

Actual or potential uses

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 487/12/2008

Current value of like properties in particular case: size of lands, shape, location and tax declaration

Consequential damages—injuries directly caused on the residue of the private property taken by reason of expropriation Example: the property left is in odd shape or with area virtually unusable

Consequential Benefits—the remainder is, as a result of the expropriation, placed in a better location, such as fronting a street where it used to be an interior lot.

Association of Small Landowners vs. DAR, 175 SCRA 343 (1989)the power of eminent domain could be used as an implement of police power. The expressed objective of the law was the promotion of the welfare of the farmers, which came clearly under the police power of the state. To achieve this purpose, the law provided for the expropriation of agricultural lands (subject to minimum retention limits for the landowners) to be distributed among the landless peasantry.

DARAB determines just compensation (exception to the general rule that courts decide the value) DAR may make initial valuation; owner goes to court if not satisfied.

Expropriation may be initiated by court action or by legislation. In both instances, just compensation is determined by the courts.

In Republic vs. Salem Investment Corporation, et al., G.R. No. 137569, June 23, 2000, the Supreme Court held that it is only upon payment of just compensation that title over the property passes to the government. Therefore, until the action for expropriation has been completed and terminated, ownership over the property being expropriated remains with the registered owner. Consequently, the latter can exercise all rights pertaining to an owner, including the right to dispose of his property, subject to the power of the State ultimately to acquire it through expropriation.

The Dela Ramas make much of the fact that ownership of the land was transferred to the government because the equitable and the beneficial title were already acquired by it in 1983, leaving them with only the naked title. However, xxx the recognized rule, indeed, is that title to the property expropriated shall pass from the owner to the expropriator only upon full payment of just compensation.

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 497/12/2008

Legal interest for expropriation cases—6% -from the time of taking until just compensation is actually paid -interest must be claimed, otherwise, it is deemed waived

Title to the property shall not be transferred until after actual payment of just compensation is made to the owner.

Genuine Necessity— National legislation—question of necessity is POLITICAL; judiciary has no power to inquire. Delegate—liberally in favor of the private property owner; judiciary can inquire into whether the authority conferred upon such delegate correctly and properly exercised/ whether expropriation contemplated by the delegate necessary or wise.

May eminent domain be barred by “res judicata” or “law of the case”? The principle of res judicata, which finds application in generally all cases and proceedings, cannot bar the right of the State or its agents to expropriate private property. The very nature of eminent domain, as an inherent power of the State, dictates that the right to exercise the power be absolute and unfettered even by a prior judgment or res judicata. The scope of eminent domain is plenary and, like police power, can “reach every form of property which the State might need for public use”. All separate interests of individuals in property are held of the government under this tacit agreement or implied reservation. Notwithstanding the grant to individuals, the eminent domain, the highest and most exact idea of property, remains in the government, or in the aggregate body of the people in their sovereign capacity; and they have the right to resume the possession of the property whenever the public interest requires it. Thus, the State or its authorized agents cannot be forever barred from exercising said right by reason alone of previous non-compliance with any legal requirement. While the principle of res judicata does not denigrate the right of the State to exercise eminent domain, it does not apply to specific issues decided in a previous case. For example, a final judgment dismissing an expropriation suit on the ground that there was no prior offer precludes another suit raising the same issue; it cannot, however, bar the State or its agent, from thereafter complying with this requirement, as prescribed by law, and subsequently exercising its power of eminent domain over the same property. [Municipality of Parañaque vs. V.M. Realty Corp., 292 SCRA 678

(1998)]

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 507/12/2008

When may the property owner be entitled to the return of the expropriated property in eminent domain cases? In Provincial Government of Sorsogon vs. Villaroya, the unpaid landowners were allowed the alternative remedy of recovery of the property. The Court ruled that “under ordinary circumstances, immediate return to the owners of the unpaid property is the obvious remedy.” However, in cases where land is taken for public use, public interest must be considered. (Estate of Salud Jimenez vs. PEZA, 349 SCRA 240)

Right of landowner in case of non-payment of just compensation—as a rule, it does not entitle the landowners to recover possession of the expropriated lots, but only to demand payment of the fair market value of the property. (Republic vs. CA, G.R. No. 146587, July 2, 2002; Reyes vs. NHA, G.R. No. 147511, January 20, 2003).

However, in RP vs. Vicente Lim, G.R. No. 161656, June 29, 2005, the SC said that the facts of the case do not justify the application of the rule. In this case, the Republic was ordered to pay just compensation twice; the first was in the expropriation proceedings, and the second, in the action for recovery of possession. Fifty-seven (57) years have passed since then. The Court construed the Republic’s failure to pay just compensation as a deliberate refusal on its part. Under such circumstances, recovery of possession is in order. It was then held that where the government failed to pay just compensation within 5 years from the finality of the judgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property.

Plaintiff’s right to dismiss the complaint in Eminent Domain In expropriation cases, there is no such thing as the plaintiff’s “matter-of-right” to dismiss the complaint, precisely because the landowner may have already suffered damages at the start of the taking. The plaintiff’s right to dismiss the complaint has always been subject to court approval and to certain conditions. (NAPOCOR & Pobre vs. CA, G.R. No. 106804, August 12, 2004)

Right to repurchase or re-acquire the property The property owner’s right to repurchase the property depends upon the character of the title acquired by the expropriator, e.g., if the land is expropriated for a particular purpose with a condition that when the purpose is ended or abandoned, the

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 517/12/2008

property shall revert to the former owner, then the former owner can re-acquire the property. In this case, the terms of the judgment in the expropriation case were very clear and unequivocal, granting title to the lot in fee simple to the Republic. No condition on the right to repurchase was imposed. (Mactan-Cebu International Airport Authority vs. CA, G.R. No. 139495, Novermber 27, 2000)

Republic vs. CA, G.R. No. 146587, July 2, 2002, in arguing for the return of their property on the basis of non-payment, respondents ignored the fact that the right of the expropriatory authority is far from that of an unpaid seller in ordinary sales to which the remedy is rescission may perhaps apply. Expropriation is an in rem proceeding, and after condemnation, the paramount title is in the public under a new and independent title.

POWER OF TAXATION—is the power to demand from the members of society their proportionate share/contribution in the maintenance of the government.

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 527/12/2008

It is the power by which the State raises revenue to defray the necessary expenses of the Government.

Scope: covers persons, property or occupation to be taxed within the taxing jurisdiction. It is so pervasive; it reaches even the citizens abroad and their income outside the Philippines; all the income earned in the Philippines by a citizen or alien.

Basis: power emanating from necessity (lifeblood doctrine)

Importance of Taxation:

1. No constitutional government can exist without it;

2. It is one great power upon which the whole national fabric is based;

3. It is necessary for the existence and prosperity of the nation; and

4. It is the lifeblood of the nation.

Who may exercise? Generally, the legislature, but also upon valid delegation:

1. Lawmaking bodies of LGUs (Sec. 5, Art. X);

2. President (limited extent-delegated tariff powers), under Sec. 28 (2), Art. VI of the Constitution or as an incident of emergency powers that Congress may grant to him under Sec. 23 (2), art. VI.

Purpose: unavoidable obligation of the government to protect the people and extend them benefits in the form of public projects and services.

Public purpose—proceeds must be devoted to public use. It includes INDIRECT public advantage/benefits. The mere fact that the tax will be directly enjoyed by private individual does not make it INVALID so long as the same link to public welfare is established.

Requisites:

1. It must be for public purpose;

2. It shall be uniform;

3. Person or property taxed shall be within the jurisdiction of the taxing authority;

4. In assessment & collection, notice and hearing shall be provided.

Limitations on the Power of Taxation Inherent limitations:

1. Public purpose;

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 537/12/2008

2. Non-delegability of power;

3. Territoriality or Situs of taxation;

4. Exemption of government from taxation;

5. International comity—generally accepted principles of international law

Constitutional limitations:

1. Due process of law—tax should not be confiscatory. Due process does not require previous notice and hearing before a law prescribing fixed/specific taxes on certain articles may be enacted. If the tax to be collected is to be based on the value of the taxable property—ad valorem tax—the taxpayer is entitled to be notified of the assessment proceeding and to be heard on the correct valuation.

2. Equal protection of law—taxes should be uniform and equitable.

3. Uniformity—persons/things belonging to the same class shall be taxed at the same rate Equitability—taxes should be apportioned among the people according to their capacity to pay

Progressivity—

4. Non-impairment of contracts

5. Non-imprisonment for non-payment of poll tax

6. Revenue and tariff bills must originate in the HOR

7. Non-infringement of religious freedom

8. Delegation of legislative authority to the President to fix tariff rates, import and export quotas, tonnage and wharfage dues

9. Tax exemption of properties actually, directly and exclusively used for religious, charitable and educational purposes

10. Majority vote of all the members of Congress required in case of legislative grant of tax exemptions

11. Non-impairment of the SC’s jurisdiction in tax cases

12. Tax exemption of revenues and assets of, including grants, endowments, donations, or contributions to, educational institutions.

Double taxation—additional taxes are laid:

1. On the same subject;

2. By the same taxing authority;

3. During the same taxing period; and

4. For the same purpose.

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 547/12/2008

Double taxation is allowed by law. However, it will not be allowed if the same will result in violation of the equal protection clause. What is prohibited is direct double taxation.

In Punzalan vs. Municipal Board of Manila, 95 Phil. 46, there is no double taxation if one tax is imposed by the LGU and the other by the National Government.

Taxes—the enforced proportional contributions from persons and property levied by the State by virtue of its sovereignty for the support of the government and for all public needs.

 

TAX

 

LICENSE

 

1.

AS TO BASIS

   

Power of taxation—to raise revenue

 

Police power—to regulate

 

2.

AS TO LIMITATION

   

Rate or amount to be collected is unlimited provided it is not confiscatory

Amount is limited to cost of: a)issuing the license; and b)necessary inspection of police surveillance

 

3.

AS TO OBJECT

   

Imposed on persons or property

 

Paid for privilege of doing something but privilege is revocable

4.

AS TO EFFECT OF NON-PAYMENT

 

Business

or

activity

does

not

become

Business becomes illegal

illegal

Tax

Debt

due to the government in its sovereign capacity

due to the government in its corporate capacity

Taxes cannot be subject to off-setting or compensation for the simple reason that the government and the taxpayers are not creditors and debtors of each other.

(Philex Mining Corp. vs. CIR, 294 SCRA 687)

Tax exemptions:

-discretion of the legislature

1. Sec. 28 (4), Art. VI

2. Sec. 28 (3), Art. VI

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 557/12/2008

3. Sec. 4 (3), Art. XIV

4. Sec. 4 (4), Art. XIV

5. Where tax exemption is granted gratuitously, it may be revoked at will; but not if granted for a valuable consideration—deemed to partake of the nature of contract and obligation thereof—protection against impairment.

In Lladoc vs. CIR, 14 SCRA 292, a parish priest accepted a donation to be used for the construction of a church. The money was spent for the purpose. The CIR imposed tax. The objection was based on constitutional exemption of church properties from taxes. The SC rejected. Exemption referred only to property taxes imposed on lands, buildings and improvements used for religious purposes. The tax in this case is not an ad valorem tax on the church itself but an excise tax imposed on the priest (not on the properties) for his exercise of the privilege to accept the donation.

Territoriality in Taxation—the power to tax operates only within the territorial jurisdiction of the taxing authority. It cannot be exercised beyond the boundaries except under certain circumstances.

Taxable Situs of Real Properties—the place where they are situated

Mobilia Sequntur Personam—the intangible personal property such as credits, bank deposits, bonds, corporate stocks which do not admit of actual location and do not have inherent value but mere evidence of debts or property are usually taxable in the state of residence of the owner.

Uniformity in Taxation—all taxable articles, or kinds of property of the same class, shall be taxed at the same rate. There is uniformity when a tax operates in taxation with the same force and effect on its subject wherever found.

Equality of Taxation—taxes shall be strictly proportional to the relative value of the taxable property.

Article III BILL OF RIGHTS

Significance. Government is powerful. When limited, it becomes tyrannical. It is a guarantee that there are certain areas of person’s life, liberty or property which

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 567/12/2008

government power may not touch.

All the powers of the government (police power, power of eminent domain and power of taxation) are limited by the Bill of Rights.

Classification of Rights:

1. Political Rights—granted by law to members of a community in relation to their direct or indirect participation in the establishment or administration of government.

2. Civil Rights—rights which municipal law will enforce at the instance of private individuals for the purpose of securing them the enjoyment of their means of happiness.

3. Social and Economic Rights—these are the rights which generally require implementing legislation. (Article XIII)

Doctrine of Preferred Freedom (Hierarchy of Rights)—some rights are preferred

PBM Employees Org. vs. PBM Co., Inc., 51 SCRA 189

While the Bill of Rights also protects property rights, the primacy of human rights

and

vulnerable, as well as supremely precious in our society” and the “threat of sanctions may deter their exercise almost as potently as the actual application of sanctions,” they “need breathing space to survive,” permitting government regulation only “with narrow specificity.”

over

property

is

recognized.

Because

these

freedoms

are

“delicate

Property and property rights can be lost thru prescription; but human rights are imprescriptible.

In the hierarchy of civil liberties, the rights of free expression and of assembly

occupy a preferred position as they are essential to the preservation and vitality of our civil and political institutions; and such priority “gives these liberties the sanctity and the sanction not permitting dubious intrusions.”

The superiority of these freedoms over property rights is underscored by the fact that a mere reasonable or rational relation between the means employed by the law and its object or purposethat the law is neither arbitrary nor discriminatory nor oppressive—would suffice to validate a law which restricts or impairs property rights. On the other hand, a constitutional or valid infringement of human rights requires a more stringent criterion, namely existence of a grave and immediate danger of a

substantive evil which the State has the right to prevent.

Sec. 1, Art. III

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 577/12/2008

No person shall be deprived of life, liberty or property without due process of law nor shall any person be denied the equal protection of the laws.

LIMITATIONS OF SOVEREIGNTY

Inherent in sovereignty, and therefore not even required to be conferred by the Constitution, are the police, eminent domain, and taxation powers. The Bill of Rights, notably the due process, equal protection and non-impairment clauses, is a means of limiting the exercise of these powers by imposing on the State the obligation to protect individual rights. The Bill of Rights is addressed to the State, notably the government, telling it what it cannot do to the individual.

A. DUE PROCESS OF LAW That which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial.

Applies to all persons, without regard to any difference in race, color or nationality

Artificial persons—covered but only insofar as their property is concerned.

Extends to aliens

Includes the means of livelihood

“Responsiveness to the supremacy of reason, obedience to the dictates of justice.” (Ermita-Malate Hotel & Motel Operators Association vs. City of Manila, 20 SCRA

849)

Life—includes the right of an individual to his body in its completeness, free from dismemberment, and extends to the use of God-given faculties which make life enjoyable.

Liberty—includes the right to exist and the right to be free from arbitrary personal restraint or servitude. x x x It includes the right of the citizen to be free to use his faculties in all lawful ways. (Rubi vs. Provincial Board of Mindoro, 39 Phil 660) Property—is anything that come under the right of ownership and be the subject of contract. It represents more than the things a person owns; it includes the right to secure, use and dispose of them.

Public

office

is

not

a property which one may acquire a vested right,

it

is

nevertheless a protected right. (Bince vs. COMELEC, 218 SCRA 782)

Scope/Aspects of Due Process:

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 587/12/2008

1. Procedural Due Process—the method or manner by which the law is enforced. It serves as a restriction on actions of judicial and quasi-judicial agencies of the government.

Requisites: (non-criminal cases)

a. An impartial court or tribunal clothed with judicial power to hear and determine matter before it;

b. Jurisdiction properly acquired over person of defendant and over

property which is the subject matter of the proceeding;

c. Opportunity to be heard; and

d. Judgment rendered upon lawful hearing and based on evidence

adduced.

Impartial Court or Tribunal—Judges must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just.

In Anzaldo vs. Clave—Jacobo Clave, acting as Chairman of CSC, rendered a decision against petitioner. When petitioner appealed to the Office of the President, the same Jacobo Clave, but this time acting as Presidential Executive Assistant, upheld his own earlier decision. The SC held that this violates fundamental fairness required by due process. A public officer who decided the case should not be the same person to decide it on appeal because he cannot be an impartial judge.

People vs. Mendenilla (2001), judges have as much interest as counsel in the orderly and expeditious presentation of evidence, and have the duty to ask questions that would elicit the facts on the issues involved, clarify ambiguous remarks by witnesses and address the points overlooked by counsel. Questions which merely clear up dubious points and elicit relevant evidence are within the prerogative of a judge to ask. Sec. 14 (1), Art. III—No person shall be held to answer for a criminal offense without due process of law. ---This is procedural due process in criminal cases

Requisites of Criminal Due Process:

a. Accused has been heard in a court of competent jurisdiction;

b. Accused is proceeded against under the orderly processes of law;

c. Accused is given notice and opportunity to be heard;

d. Judgment rendered within authority of constitutional law

If the prosecution produces the conviction based on untrue evidence, then it is guilty of depriving the accused of due process. Thus false testimony can be questioned by the accused regardless of the time that lapsed.

(Mejia vs. Pamaran, No. L-56741, April 15, 1988)

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 597/12/2008

the

procedures by which the law would be enforced, is fair, reasonable and just. This serves as a restriction on the government’s law and rule-making powers; a prohibition of arbitrary laws.

2.

Substantive

Due

Process—it

requires

that

the

law

itself,

not

merely

The heart to substantive due process is the “reasonableness”, or the absence of exercise of arbitrary power. These are necessarily relative concepts which depend on the circumstances of every case.

As a general rule, when the State acts to interfere with life, liberty, or property, the presumption is that the action is valid. In rare cases, as in “prior restraint”, there is a presumption of invalidity.

Requisites:

a. Interest of the public;

b. Means employed are reasonably necessary for accomplishment of purpose and not unduly oppressive. The legislature may not, under the guise of protecting the public interest, arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations.

Void-for-vagueness Rule—a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the

statute, or is so indefinite that it encourages arbitrary and erratic arrests and convictions is void for vagueness. The constitutional vice in a vague or indefinite statute is the injustice to the accused in placing him on trial for an offense, the nature of which he is given no fair warning.

A law is “vague” as not to satisfy the due process need for notice when it lacks

comprehensible standards that “men of common intelligence must necessarily guess as to its meaning and differ as to its application” or is so indefinite that “it encourages arbitrary and erratic arrests and convictions.”

It is injustice to the accused in placing him on trial for an offense, the nature of which he is given no fair warning.

It is repugnant to the Constitution in 2 aspects:

1. It violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and

2. It leaves law enforcers unbridled discretion in carrying out its provisions

and become an arbitrary flexing of the Government muscle. The act must be utterly vague on its face, that is to say, it cannot be clarified by either saving clause or by construction. (People vs. Dela Piedra, 350 SCRA 163, January 24, 2001)

Overbreadth Doctrine—decrees that a governmental purpose may not be

2008 Political Law and Public International Law

Personal Review Notes (taken from various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R review materials, www.pinoylaw.net, etc.)

Ma. Luisa Angeles Ramos

¥say

Page 607/12/2008

achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.

Facial Challenge—a facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible “chilling effect” upon protected speech.

“On its face” invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected. It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts.

xxx

[T]he clause "unless it is otherwise provided" refers to the date of effectivity and not to the requirement of publication itself, w/c cannot in any event be omitted. This clause does not mean that the legislature may make the law effective immediately upon approval, or on any other date, w/o its previous publication.

Tanada vs. Tuvera, 146 SCRA 446 (1986), Motion for reconsideration.

Publication is indispensable in every case, but the legislature may in its discretion provide that the usual 15-day period shall be shortened or extended.

It is not correct to say that under the disputed clause publication may be dispensed w/ altogether. The reason is that such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it. Conclusive presumption of knowledge of the law.-- The conclusive presumption that every person knows the law presupposes that the law has been published if the presumption is to have any legal justification at all. The term laws should refer to all laws and not only to those of general application, for strictly speaking all laws relate to the people in general albeit there are some that do not apply to them directly. An example is a law granting citizenship to a particular individual, like a relative of Pres. Marcos who was decreed instant naturalization.

RULE: All statutes, including those of local application and private laws, shall be published as a condition for their effectivity, w/c shall begin 15 days after publication unless a different effectivity date is fixed by the legislature.

Coverage: Covered by this rule are PDs and EOs promulgated by the Pres. in the exercise of legislative powers. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant to a valid delegation.

2008 Political Law and Public International Law

Personal Review Notes