Bendever C.

Gerona
Constitutional Law 1

Imperium

Imperium is the State's authority to govern which is embraced in the concept of sovereignty,
the right to exercise the functions of State to the exclusion of any other state. This power
includes passing laws, governing a territory, maintaining peace and order over it, and defending
it against foreign invasion.

The foregoing decisions of the Supreme Court provide a good illustration of the State's power
of imperium:

In Harvey vs. Commissioner of Immigration and Deportation (162 SCRA 840), which involves
deportation of undesirable aliens, the Court, quoting several of its prior decisions, held that
"Every sovereign power has the inherent power to exclude aliens from its territory upon such
grounds as it may deem proper for its self-preservation or public interest. The power to deport
aliens is an act of State, an act done by or under the authority of the sovereign power. It is a
police measure against undesirable aliens whose continued presence in the country is found to
be injurious to the public good."

The case of Ichong vs. Hernandez (101 Phil. 115), the court was confronted with a question on
the validity of the State's exercise of its police power, when congress passed Republic Act No.
1180, an act which regulates alien participation in retail trade. The court deemed it proper to
incorporate discussion the metes and bounds of police power as it relates to our constitution
when they said that:

"[P]olice power is so far-reaching in scope that it has become almost impossible to limit
its sweep. As it derives its existence from the very existence of the State itself, it does not
need to be expressed or defined in its scope; it is said to be co-extensive with self
protection and survival, and as such it is the most positive and active of all governmental
processes, the most essential, insistent and illimitable. xxx So it is that Constitutions do
not define the scope or extent of the police power of the State; what they do is to set
forth the limitations thereof. The most important of these are the due process clause and
the equal protection clause."

Also, they ruled that the provisions of a treaty are always subject to qualification or
amendment by a subsequent law, or that it is subject to the police power of the State.

In Agusting vs. Edu (88 SCRA 195), the court further elaborate on the scope of police power
when it decided this case assailing the constitutionality of President Marcos' Letter of
Instruction No. 299 which mandates owners of motor vehicles, except motorcycles and trailers,
to secure a pair of Early Warning Device as a requirement for vehicle registration. The court
held that the Letter of instruction was issued in exercise of police power for the safety of the
motoring public.

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Citing Calalang vs Williams, the court "[i]dentified police power with state authority to enact
legislation that may interfere with personal liberty or property in order to promote the general
welfare." Further, they state that "The police power is thus a dynamic agency, suitably vague
and far from precisely defined, rooted in the conception that men in organizing the state and
imposing upon its government limitations to safeguard constitutional rights did not intend
thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the
enactment of such salutary measures calculated to communal peace, safety, good order, and
welfare.

Part of the State's exercise of its power of imperium, is to compel its citizens, "by force if need
be, against his will, against his pecuniary interests, and even against his religion or political
convictions, to take his place in the ranks of the army xxx ." (People of the Philippines vs.
Lagman, 66 Phil. 13)

In Lim vs Executive Secretary (G. R. No. 151445, April 11, 2002), the Court was confronted with
a question as to the extent of the State's exercise of its power of imperium in instances where it
is bound by a treaty or treaty stipulation. Here, they assert that even pursuant to the principle
of pacta sunt servanda, "our Constitution authorizes the nullification of a treaty, not only when
it conflicts with the fundamental law, but also when it runs counter to an act of Congress.

Dominum

The capacity of the State to own or acquire property is the state's power of dominium.
(Separate Opinion, Puno, J., in I sagani Cruz v. Secretary of DENR , G.R . No. 135385,
Dec. 6, 2000) Properties which the state may acquire may include lands and other natural
resources.

Chavez vs PEA-AMARI (G.R. No. 133250, July 9, 2002), a case which involves the transfer of
ownership of lands, reclaimed or to be reclaimed, from the Public Estate Authority to AMARI,
provides for a good resource on how the State exercises dominium.

It is said that "[t]he ownership of lands reclaimed from foreshore and submerged areas is
rooted in the Regalian doctrine which holds that the State owns all lands and waters of the
public domain. Upon the Smanish conquest of the Philippines, ownership of all 'lands and
territories and possessions' in the Philippines passed to the Spanish Crown. XXX

The 1935, 1973 and 1987 Constitutions adopted the Regalian doctrine substituting, however,
the State in lieu of the King, as the owner of all lands and waters of the public domain."

With the passage of the Philippine Commission's Act No. 1654, "government was mandated to
retain title to all lands reclaimed by the government. XXX and made government reclaimed
lands sui generis in that unlike other public lands which the government could sell to private
parties, these reclaimed lands were available only for lease to private parties."

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The Constitutions that were passed after said law retained the condition that reclaimed lands
were only available for lease to private parties except to citizen who may purchase parts of the
reclaimed land for as long as he does not exceed the 12 hectare land ownership limit by said
purchase. In no way shall these lands be sold to any corporations even though they suffice the
60% Filipino ownership rule.

In Chavez vs PEA-AMARI (G.R. No. 133250, May 6, 2003), The court stressed that
"Government owned lands, as long [as] they are patrimonial property, can be sold to private,
parties whether Filipino citizens or qualified private corporations. XXX Likewise, reclaimed
alienable lands of the public domain if sold or transferred to a public municipal corporation for a
monetary consideration become patrimonial property in the hands of the public municipal
corporation. Once converted to patrimonial property, the land may be sold xxx to private
parties, xxx."

The decision on the second motion for reconsideration of Chavez vs PEA-AMARI (G.R. No.
133250, May 6, 2003) highlights the State's ownership of submerged lands. Accordingly:

"Submerged lands, like the waters (sea or bay) above them, are part of the State's
inalienable natural resources. Submerged lands are property of public dominion,
absolutely inalienable and outside the commerce of man. This is also true with respect to
foreshore lands. Any sale of submerged or foreshore lands is void being contrary to the
Constitution."

In the case of The Republic of the Philippines vs. CA (G.R. No. 103882, Nov. 25,
1998), jurisprudence was laid out into what constitute a foreshore land and if that same term
covers lands covered by water. Accordingly:

"[T]he term foreshore refers to 'that part of the land adjacent to the sea which is
alternatively covered and left dry by the ordinary flow of the tides.'"

The passage of the Indigenous Peoples Rights Act in 1997 recognized the native title as a source
of right to claim ancestral domains and ancestral lands for indigenous people and indigenous
communities. Contending that the IPRA law deprives the State's ownership over lands of the
public domain as well as minerals and other natural resources therein, in violation of the
Regalian doctrine embodied in the Constitution, petitioners Isagani Cruz and Cesar Europa took
the matter to the Supreme Court.

In Cruz vs. Secretary of DENR (G.R. No. 135385, Dec. 6, 2000), the court was equally divided on
the issue thus we glean from the separate opinions of the Supreme Court Judges.

Justice Puno, defined native title as that which "refers to ICCs/IPs' pre-conquest rights to lands
and domains held under a claim of private ownership as far back as memory reaches. The lands
are deemed never to have been public lands and are presumed to have been held that way
since before the Spanish Conquest."

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Justice Kapunan, in harmonizing the native title concept with the Regalian theory says that:

"Although Spain was deemed to have acquired sovereignty over the Philipines, this did
not mean that it acquired title to all lands in the archipelago. By virtue of the colonial laws
of Spain, the Spanish Crown was considered to have acquired dominion only over the
unoccupied and unclaimed portion of our islands."

Nothing in the IPRA law grants to the ICCs/IPs ownership over natural resources within their
ancestral domain. Ownership over the natural resources in the ancestral domains remains with
the State since native title to natural resources, unlike native title to land, has not been
recognized in the Philippines.

From time to time, the Supreme Court has to decide on cases involving the curtailment of the
State's power of dominium. Such is the case of La Bugal-B'laan Tribal Association vs. DENR
Secretary (G. R. No. 127882, Jan 27, 2004). In this case, mining contract between the Republic
of the Philippines and WMCP Inc. The court, through Justice Carpio-Morales said that:

"These contractual stipulation, taken together, grant WMCP beneficial ownership over
natural resources that properly belong to the State and are intended for the benefit of its
citizens. These stipulations are abhorrent to the 1987 Constitution. They are precisely the
vices that the fundamental law seeks to avoid, the evils that it aims to suppress.
Consequently, the contract from which they spring must be struck down."

In Heirs of Malabanan vs. Austria-Martinez (G.R. No. 179987, April 29, 2009), the Court held
that patrimonial property of the State may be acquired by prescription and that properties of
public domain no longer intended for public use or for public service, shall form part of the
patrimonial property of the State, quoting Article 422 of the Civil Code. They added that:

"For as long as the property belongs to the State, although already classified as alienable
or disposable, it remains property of the public dominion if when it is intended for some
public service or for the development of the national wealth."

In keeping with the presumption of State ownership, the court emphasized that:

"[T]here must be an express declaration by the State that the public dominion property is
no longer intended for public service or the development of the national wealth or that
the property has been converted into patrimonial. Without such express declaration, the
property, even if classified as alienable or disposable, remains property of the public
dominion, xxx, and thus incapable of acquisition by prescription. It is only when such
alienable and disposable lands are expressly declared by the State to be no longer
intended for public service, or the development of the national wealth that the period of
acquisitive prescription can begin to run. Such declaration shall be in the form of a law

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duly enacted by Congress or a Presidential Proclamation in cases where the President is

duly authorized by law."

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