Lecture Outline POLITICAL LAW REVIEW (Prof. Rex M.

Alobba)

GENERAL CONSIDERATIONS I. Concept of Political Law That branch of public law which deals with the organization and operation of the governmental organs of the state and defines the relations of the State with the inhabitants of its territory. (People vs. Perfecto; Macariola vs. Asuncion) 1. Elements of the Definition

a. Public Law also called public act or public statute: a law or statute of a general character that applies to the people of a whole state or nation (Dictionary of Law, James E. Clapp), e.g. constitutional law, criminal law and administrative law.

b. Deals with the organization and operation of government Constitutional provisions on the various departments including Articles VI (Legislative), VII (Executive), VIII (Judiciary), IX (Constitutional Commissions), X (Local Government) Laws on public administration including the Revised Administrative Code, Local Government Code, Law on Public Officers and Election Laws.

c. Defines the Relationship between the State and the inhabitants The state in the exercise of police power, power of eminent domain and the power of taxation interferes with individual rights of its inhabitants. The guarantees under the constitution against states arbitrary use of inherent powers are found in the Bill of Rights of the 1987 Constitution (III) including the Due Process Clause, Equal Protection Clause and the Non-Impairment of Obligation Clause; Constitutional provisions defining the relationship of the state and its inhabitants are primarily found in Article III (Bill of Rights), IV (Citizenship), V (Suffrage) and to a certain extent in Article II (Declaration of Principles)

II. Nature of Political Laws The nature of political law regulating the relationship between government and its inhabitants changes when there is a change in the sovereignty. 1. When there is a change in sovereign, political laws are automatically abrogated, unless they are expressly enacted by affirmative act of the new sovereign (Macariola v. Asuncion)

2. However, there being no change in sovereignty during a belligerent occupation, the political laws of the occupied territory are merely suspended, subject to revival upon the end of the occupation. Laws which are not in the nature of political laws are deemed continued unless changed or amended by the belligerent occupant since they are intended to the relationship of individuals among themselves and are not generally affected by changes in regimes or rulers. This general rule does not apply to the following: 2.a Suspension of political laws does not bind enemies but affects only civilians. (Ruffy vs. Chief of Staff) 2.b Suspension of political law does not apply to crimes which are political in nature, e.g. treason and espionage. (Laurel v. Misa)

III. Constitutional Law as Primary Source 1. Constitutional law is a term used to designate the law embodied in the constitution and the legal principles growing out of the interpretation and application made by courts of the provisions of the constitution in specific cases. (Sinco, Phil. Political Law, 1962) 2. Sources of the 1987 Constitution The provisions of the 1987 Constitution evolved from two (2) primary sources: 2.a Treaties and Organic Acts 2.b Prior Constitutions of the Philippines TREATIES AND ORGANIC ACTS Treaty of Paris, April 1899, Spain relinquished sovereignty over the Philippine Islands Treaty of Washington, November 1900 and the Treaty between U.S. and Britain, January 1930 where additional territories were ceded to the U.S. as part of the Philippine territory. Mckinleys Instructions to the 2nd Phil. Commission (1900) setting up a divided civil and military government under the U.S. President as commander-in-chief; extended to Filipinos the Bill of Rights of the U.S. Const., except right to bear arms and trial by jury. Spooner Amendment (1901) which government under the U.S. Congress. established a fully civil

Philippine Bill of 1902 which created two (2) houses of Congress the upper house (Philippine Commission) composed of Americans and the lower house (Phil. Assembly) composed of Filipinos; defined who are the citizens of the Philippines as all inhabitants of the Phil. Islands who were subjects of Spain as of April 11, 1899 who continued to reside therein and the children born subsequent thereto.

Jones Law or the Philippine Autonomy Act (1916) established s government of three (3) branches, executive, legislative and judiciary with real separation of powers. The legislative department consists of a Senate and House of representatives composed of Filipinos. Freedom Constitution of 1986 which was made the basis for governance during the interim period from the ouster of Ferdinand Marcos until the ratification of the 1987 Constitution on February 2, 1987.

Philippine Constitutions The 1935 or Commonwealth Constitution which took effect on November 15, 1935. It is the product of the Tydings Mcduffie Law of the U.S. Congress which called for the adoption of a constitution for an independent Philippines. The 1973 or Marcos Constitution which took effect on January 17, 1973 which established a unicameral legislature called Batasan Pambansa. The 1987 Constitution which took effect on February 2, 1987. Its outstanding features include: a. The provisions of 1935 Const. particularly these pertaining to the legislative and executive departments were restored due to revival of a bicameral legislature; b. The independence of the judiciary was strengthened by its expanded jurisdiction to acquire jurisdiction over acts of the other departments to determine whether there is grave abuse of discretion; c. Provisions of the 1973 Const. on Constitutional Commission and Local Government were retained. d. The Bill of Rights has been considerably improved and bolstered by the creation of a Commission on Human Rights. (Phil Political Law, Isagani Cruz, 1996 Ed.)

NATIONAL TERRITORY I. Concept of Territory Territory is the fixed portion of the surface of the earth inhabited by the people of the State. Its components are the terrestrial domain, maritime and fluvial domain, and aerial domain. (Cruz, Phil. Pol. Law, 1996 Edition) II. National Territory of the Philippines Article I of the 1987 Constitution substantially provides that the national territory comprises the Philippine Archipelago and all other territories over which the Philippines has sovereignty or jurisdiction. 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.

1. Components of the Phil. Territory 1.a. Philippine Archipelago as determined by Article 3 of the Treaty of Paris which provides the technical description of the extent of territory ceded to the U.S.; Treaty of Washington which ceded the islands of Cagayan, Sibuto and Sulu; treaty between U.S. and Britain (1930) which ceded to the U.S. the Turtle and Mangsee Islands. 1.b. Other Territories Claim over the Kalayaan Group of Islands on the basis of historic right and legal title under Pres. Decree No. 1596, June 1978; Sabah North Borneo North Marianas Group of Islands

*The claims were made by reason of history, indispensable need and effective occupation and control established in accordance with international law. 1.c. The territorial sea, the sea bed, the subsoil, the insular shelves and submarine area, including land submerged underwater which may extend beyond 12 miles as long as it is not more than 300 feet deep, known as intercontinental shelf. 2. Territorial Limits 2.a. The Archipelago Doctrine/Regime of Islands [Article 121 of the UN Convention of the Law of the Seas, (UNCLOS)] States where territory is composed of islands surrounded by waters are viewed as a untiy of islands and considered as one integrated unit. 2.b. Methods of Determining Baselines The determination of baselines is important in determining the extent of the territorial sea [within the 12-mile limit) and the extent of the Exclusive Economic Zone (EEZ) under the UNCLOS]. 2.b.1. RA 3046 as amended by RA No. 5446, and further amended by RA 9522 effective March 10, 2009 The baselines from which the territorial sea of the Philippines is determined, consists of straight lines joining the appropriate points of the outermost islands of the archipelago. Section 1 of RA 9522 identifies the appropriate points of the outermost islands of the archipelago. 3. Exclusive Economic Zone The UNCLOS recognized the EEZ which shall not extend beyond 200 nautical miles from the baselines. In cases where the outer limits of the EEZ overlaps with the EEZ of a neighboring state, the common boundaries shall be determined by agreement among the states in accordance with principles of international law.

3.a. Purposes of the EEZ Right to explore, exploit, conserve and manage natural resources of the zone Exclusive rights and jurisdiction with respect to the establishment and utilization of artificial islands, off-shore terminals, installation and structures and the preservation of the marine environment.

3.b. Right of other States over the EEZ Use the zone for navigation and overflight Laying of submarine cables and pipelines Other lawful uses related to navigation and communication.

SOVEREIGN IMMUNITY

I. CONCEPT OF STATE IMMUNITY Sovereign immunity is the traditional immunity of the government itself from any suit at all-derived from the notion that the king can do no wrong. (James E. Clapp, Dictionary of the Law) It is an international law principle which is founded on the positivist theory that there can be no legal right as against the authority that makes the law on which the right depends. (Kawanakoa vs. Polybank, 206 U.S. 349) and on the practical theory that if the state is amenable to suits, all its time would be spent defending itself from the suits, preventing it from performing its other vital functions. (Republic vs. Villasor, 54 SCRA 83). II. Constitutional Basis Article XVI, Sec. 3 of the 1987 Constitution provides the State may not be sued without its consent. 1. Elements of the Provision: 1.a. State 1.b. Suit 1.c. Consent State when the provision refers to the State it includes both the host state and foreign states. As such sovereign immunity is likewise available to foreign states in so far as they are sought to be sued in the courts of the local state. Under the doctrine of sovereign equality of states, a state cannot assert jurisdiction over another. (Par en parem non habet imperium) Suit When is a suit considered as a suit against the state?

State immunity, as a matter of defense, may only be invoked if the state is considered the real party in interest. State is the real party in interest as defendant in a suit if it produces adverse consequences to the public treasury in terms of the need to appropriate funds or property to satisfy the judgment. Thus: When a public officer is sued for damages in the performance of official duties and the judgment if the claim is allowed would need appropriation of public funds, this is considered as suit against the state. (Garcia vs. Chief of Staff, 16 SCRA 120). However, when the suit is to compel a public officer to perform a ministerial duty to pay the plaintiff with amounts already appropriated, this is no longer a suit against the state because there is no more need to appropriate funds for the purpose. (Del Mar v. PVA, 51 SCRA 340) When the case clearly indicates that the public official is sued in his personal capacity/or for acts beyond his authority, the suit is not against the state. (Festejo v. Fernando, 50 OG 1556)

Consent Sovereign immunity may be waived by the state. Thus, giving its consent to be sued either expressly or impliedly. Expressly, thru the enactment of general laws or special laws or impliedly, when the government into business contracts or for reasons of equity. General laws granting consent to be sued include: Money claims arising from contract under Act No. 3048, CA 327, Art. IX-A Sec. 7, 1987 Const. Must be filed with COA which has 60 days within which to act. Once a decision is made, claimant has 30 days to appeal by certiorari to the CA. Article 2180 of the Civil code which allows complainants to sue the state for quasi-delicts committed by special agents. Incorporation of Government Owned and Controlled Corporation granting it a separate personality from the national government. Local Government Code (RA 7160) which grants local government units the power to sue and be sued.

Special laws granting a particular person/entity to sue government agencies may be granted by congress thru a resolution. Implied consent to be sued may be given by the state when it enters into business contracts in the performance of its commercial and proprietary functions. However, when it performs governmental functions (juri imperii) and enters into contract in connection therewith, there is no waiver of sovereign immunity. (USA vs. Ruiz, 136 SCRA 487)

Implied consent is likewise granted when the government initiates the filing of a complaint, thus opening itself to counterclaims by the defendant. Finally, when it would be inequitable for the state to invoke its immunity for violating the rights of individuals. (Amigable vs.cuenca, 43 SCRA 360; Vigilar vs. Arnulfo Aquino (G.R. No. 180388, Jan. 18, 2011) 2. Scope of Consent The mere fact that the state is suable does not mean that it is liable, or to put in another way, waiver of immunity does not mean concession of liability. (Cruz, Phil. Pol. Law, 1996 Ed. P. 46) Assuming for the sake of argument that complainant wins the case against the state, the extent of consent granted by the state is only until the finality of judgment. Execution of the judgment may not be done thru the ordinary means of satisfying the award because public funds or property cannot be garnished or levied upon just like any private property. (Phil Video, Inc. vs TESDA, G. R. No. 155504, June 26, 2009). The victorious claimant against the government must wait until the funds to satisfy the award are appropriated by the pertinent legislative body.