UNIVERSITY OF NEGROS OCCIDENTAL-RECOLETOS

SCHOOL OF LAW
unorlawschl@gmail.com

2018 QUIZZER IN
POLITICAL LAW & PUBLIC INTERNATIONAL LAW 1

BY

Dean J. P. VILLASOR 2

What is the concept of expanded judicial review under the 1987 Constitution?

ANSWER: The concept of expanded power of judicial review is specified in the second paragraph
of Section 1 of Article VIII of the Constitution where it is provided that judicial power includes the
duty “to determine whether or not there has been grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.

Due to the expanded power of judicial review under the 1987 Constitution, the facial challenge to
the constitutionality of laws is no longer limited to laws which violate freedom of speech but applies
to all violations of fundamental right under the Bill of Rights. (Imbong v. Ochoa, G.R. No. 204819,
8 April 2014, 721 SCRA 140)

The remedies of certiorari and prohibition in the Supreme Court are broader in scope and may be
issued to correct errors of jurisdiction of judicial, quasi-judicial or ministerial actions and may be
invoked to restrain any act of grave abuse of discretion of any branch of government, even if it does
not exercise judicial, quasi-judicial or ministerial functions (Araullo v. Aquino III, G.R. No.
209287, 1 July 2014, 728 SCRA 1)

II

Distinguish the rule-making power or the pwer of the Supreme Court to promulgate rules under
Section 5, Article VIII of the 1987 Constitution, and judicial legislation.

Answer: Section 3(5) of Article VIII of the Constitution granted the Supreme Court power to
promulgate rules concerning the protection and enforcement of constitutional rights. In the
exercise of this power, the Supreme Court promulgated rules on the writ of amparo, habeas data,
and for environmental cases, specifically the temporary environmental protection order and the
writ of kalikasan.

Judicial legislation refers to the encroachment by the judiciary upon the function of the legislature
by making law rather than declaring construing or enforcing the law (Ballantine’s Law Dictionary)

III

What are the three (3) levels of scrutiny/review under the three-tiered approach to equal protection
analysis? Explain.

ANSWER: The three levels of scrutiny under the three-tiered approach to equal protection
analysis are the strict scrutiny test, the intermediate scrutiny test, and the rational basis test.

The strict scrutiny test applies if the legislative classification disadvantages a subject class or
impinges upon a fundamental right, the government must show that the challenged classification
serves a compelling state interest and that the classification is necessary to serve that interest. Thus,
the statute must fail unless the government can show that the classification serves a compelling
state interest. Suspect classifications that are subject to strict scrutiny involve issues on religion,

1
Compiled by Dean J. P. Villasor from Justice Nachura’s Outline/Reviewer in Political Law (2009), decisions
promulgated by the Supreme Court, the U.P. Law Center’s Answers to Bar Examination Questions, the 1987
Constitution and his own notes on Political and Public International Law. Updated on 31 October 2018.
2
BSBA (University of the Philippines, Diliman, Quezon City); LLB (University of the Philippines, Diliman,
Quezon City); MSc (London School of Economics, London, England); Certificate, 25 th National Security Law
Institute, University of Virginia Law School, Charlottesville, Virginia; Member, Philippine Bar, and Registered
Foreign Lawyer, Singapore International Commercial Court; Member, American Society of International Law,
ASEAN Law Association and Philippine Society of International Law; Member, International Law and
International Affairs Committee, Integrated Bar of the Philippines
 2

alienage, race or national origin, as well as classifications burdening fundamental constitutional

rights.

Under the intermediate scrutiny test, the government must show that the challenged classification
serves an important state interest and that the classification is at least substantially related to
serving that interest. Also referred to as middle-tier scrutiny, intermediate scrutiny states that if the
classification, while not facially discriminatory, gives rise to recurring constitutional difficulties or
disadvantages a quasi-suspect class, it will be treated under intermediate scrutiny. The law must
not only further an important government interest and be related to that interest. The justification
must be genuine and must not depend on broad generalizations. Quasi-suspect classifications such
as gender and illegitimacy fall under the intermediate scrutiny test.

Under the rational basis test, the government only needs to show that the challenged classification
is rationally related to serving a legitimate state interest. If neither the strict scrutiny or the
intermediate scrutiny is appropriate, the statute will be tested for its rational basis. Under the
rational basis test, the government only needs to show that the challenged classification is rationally
related to serving a legitimate state interest. Also referred to as minimum scrutiny, the rational
basis test The presumption is in favor of the classification, the reasonableness and fairness of state
action and of legitimate grounds of distinction. Minimum scrutiny applies to all classifications if
strict scrutiny or intermediate scrutiny is inapplicable.

IV

The Transgender Society (TranSoc), a group of transgender persons, filed for accreditation with the
Commission on Elections to join the next party-list electins. The Commission denied the
application for accreditation on the ground that TranSoc espouses immorality which offends
religious values. TranSoc challenges the denial of its application based on moral grounds because it
violates its right to equal protection of the law, Which equal protection test should be applied to the
TranSoc case? Explain.

ANSWER: The intermediate scrutiny test should be applied to the TranSoc case. Classification on
the basis of sexual orientation is a quasi-subject classification warranting intermediate scrutiny.
Historically, transgender persons were and continue to be the target of discrimination due to their
sexual orientation. Sexual orientation has no relation to a person’s ability to contribute to society.
The discrimination that distinguish transgender persons are beyond their control their control. The
group lacks sufficient political strength to bring an end to discrimination through political means
(Ang Ladlad LGBT Party v. Commission on Elections, G.R. No. 190582, 8 April 2010, 618 SCRA
32)

Ambassador Silverman is State Java’s diplomatic representative to State Krakatoa. During one of
his vacations, Ambassador Silverman decided to experience for himself the sights and sounds of
State Paradiso, a country known for its scenic beauty and natural attractions. While in State
Paradiso, Ambassador Silverman was caught in the company of children under suspicious
circumstances. He was arrested for violation of the strict anti-pedophilia statute of State Paradiso.
Je claims that he is immune from arrest and incarceration by virtue of his diplomatic immunity.

Is the claim of Ambassador Silverman valid?

ANSWER: Ambassador Silverman cannot invoke his diplomatic immunity. In accordance with
Article 31(1) of the Vienna Convention on Diplomatic Relations, since State Paradiso is not his
receiving state, he does not enjoy diplomatic immunity within its territory. Under Article 40(1) of
the Vienna Convention on Diplomatic Relations, he cannot be accorded diplomatic immunity in
State Paradiso, because he is not passing through it to take up or return to his post or to return to
State Java.

VI

What is the Royal Prerogative of Dishonesty?

ANSWER: The “Royal Prerogative of Dishonesty” is a general principle of law which provides that
the state cannot be sued without its consent. It is based on the very essence of sovereignty. Known
as the state immunity against suit doctrine, it is derisively called the “Royal Prerogative of
Dishonesty” because it grants the state the prerogative to defeat any legitimate claim against it by
simply invoking its non-suability.

Historically, monarchs held absolute power as the sovereign of the people. In modern times, the
sovereign power resides in the people , through the State. In political law theory, to sue the state
would be suing the people as the sovereign power of the state.

A state cannot be sued without its consent on the logical and practical ground that there can be no
legal right as against the authority which makes the law on which that right depends.
 3

The doctrine applies to foreign governments because of the sovereign equality of all states.
Sovereign immunity is enjoyed by other States under the public international law principle of PAR
IN PAREM NON HABET IMPERIUM. The head of State, who is deemed the personification of the
State, is inviolable and therefore enjoys immunity from suit.

VII

What is the state policy on agrarian reform, rural development and natural resources reform?

ANSWER: Section 21 of Article II of the Constitution provides that the State shall promote
comprehensive rural development and agrarian reform.

The Social Justice Clause of the Constitution under Article XIII further encapsulates the state policy
on agrarian reform and natural resources reform:

Sec. 4. The State shall, by law, undertake an agrarian reform program founded on the right of
farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till
or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the
State shall encourage and undertake the just distribution of all agricultural lands, subject to such
priorities and reasonable retention limits as the Congress may prescribe, taking into account
ecological, developmental, or equity considerations, and subject to the payment of just
compensation. In determining retention limits, the State shall respect the right of small
landowners, The State shall further provide incentives for voluntary land-sharing.

Sec. 5. The State shall recognize the right of farmers, farmworkers, and landowners, as well as
cooperatives, and other independent farmers’ organizations to participate in the planning,
organization, and management of the program, and shall provide support to agriculture through
appropriate technology and research, and adequate financial, production, marketing, and other
support services.

Sec. 6. The State shall apply the principles of agrarian reform or stewardship, whenever applicable
in accordance with law, in the disposition or utilization of other natural resources, including lands
of the public domain under lease or concession suitable to agriculture, subject to prior rights,
homestead rights of small settlers, and the rights of indigenous communities to their ancestral
lands.

The State may resettle landless farmers and farmworkers in its own agricultural estates which shall
be distributed to them in the manner provided by law.

Sec. 7. The State shall protect the rights of subsistence fishermen, especially of local communities,
to the preferential use of the communal marine and fishing resources, both inland and offshore. It
shall provide support to such fishermen through appropriate technology and research, adequate
financial, production, and marketing assistance, and other services. The State shall also protect,
develop and conserve such resources. The protection shall extend to offshore fishing grounds of
subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their
labor in the utilization of marine and fishing resources.

Sec. 8. The State shall provide incentives to landowners to invest the proceeds of the agrarian
reform program to promote industrialization, employment creation, and privatization of public
sector enterprises. Financial instruments used as payment for their lands shall be honored as equity
in enterprises of their choice.

VIII

A court interpreter in the trial court was found to be living-in with a separated man without the
benefit of marriage, but the arrangement had the blessing of her religion, which was Jehovah’s
Witnesses. Charged with immorality and threatened with dismissal, she pleads religious freedom.

Is the court interpreter guilty of immorality, which warrants dismissal from service in the judiciary?

ANSWER: No, she is not guilty of immorality on the ground that being a member of Jehovah’s
Witnesses, she is guaranteed the free exercise of her religion which includes an arrangement to live-
in with a separate man without the benefit of marriage, an arrangement which is allowed by the
Jehovah’s Witnesses.

In Estrada v. Escritor (A.M. No. P-02-1651, 4 August 2003 and 22 June 2006), the Supreme Court,
through then Senior Associate Justice Reynato S. Puno, held that in this particular case and under
these distinct circumstances, respondent Soledad Escritor’s conjugal arrangement cannot be
penalized as she had made out a case for exemption from the law based on her fundamental right to
freedom of religion. The Court recognized that state interests must be upheld in order that
freedoms – including religious freedom – may be enjoyed. In the area of religious exercise as a
preferred freedom, however, man stands accountable to an authority higher than the state, and so
the state interest sought to be upheld must be so compelling that its violation will erode the very
fabric of the state that will also protect the freedom. In the absence of a showing that such
 4

compelling state interest exists, man must be allowed to subscribe to the Infinite. The
administrative complaint against Soledad Escritor was thus dismissed.

In the case at bar, the constitutional guarantee of the freedom of religion clause under Section 5 of
Article III and under the Supreme Court ruling in Estrada v. Escritor renders the court interpreter
not guilty of immorality, being a member of Jehovah’s Witnesses.

IX

Ephraim, Seraphim and Cherubim were required to participate compulsorily by their school in flag
ceremonies. They refused to participate citing it was against their religion as members of Jehovah’s
Witnesses. They were charged with violation of the Flag Salute Law.

Can the school of Ephraim, Seraphim and Cherubim compel them to participate in the flag
ceremony of their school?

ANSWER: No, the school cannot compel them to participate in flag ceremonies in their school as
this would be violative of their right to the free exercise of their religion, as members of the
Jehovah’s Witnesses.

In Ebralinag v. Superintendent of Schools of Cebu (219 SCRA 256 [1993]), the Supreme Court
ruled that the freedom of religion clause under Section 5 of Article III of the Constitution requires
that protesting members be exempted from the operation of the Flag Salute Law. As protesting
members of Jehovah’s Witnesses, Ephraim, Seraphim and Cherubim are exempted from the
operation of the Flag Salute Law, which causes an abridgment of the free exercise of their religion.

a) What are the instances when warrantless searches may be effected?

ANSWER: A warrantless search may be effected in the following cases:

1. Searches incident to a lawful arrest;

2. Searches of moving vehicles;
3. Searches of prohibited articles in plain view;
4. Enforcement of customs laws;
5. Consented searches;
6. Stop and frisk (Terry v. Ohio, 392 U.S. 1 [1968] as adopted in Malacat v. Court of Appeals, 283
SCRA 159 [1997] and People v. Montilla, 285 SCRA 703 [1998]);
7. Routine searches at borders and ports of entry (U.S. v. Ramsey, 431 U.S. 606 [1977]); and
8. Searches of businesses in the exercise of visitorial powers to enforce police regulations (New York
v. Burger, 482 U.S. 691 [1987]).

b) What is the stop-and-frisk rule?

ANSWER: The stop-and-frisk rule or the Terry patdown (Terry search) is a valid stop and search
measure employed by law enforcement officers without a search warrant. This is justified when
conducted by police officers on the bases of prior confidential information which were reasonably
corroborated by other attendant matters as laid down in the landmark U.S. Supreme Court decision of
Terry v. Ohio, 392 U.S. 1 [1968]. Terry v. Ohio defines the vernacular designation of the right of a police
officer to stop a citizen on the street, interrogate him and pat him for weapons whenever he observes
unusual conduct which leads him to conclude that criminal activity may be afoot.

c) Law enforcement officers of the Philippine Drug Enforcement Agency were assigned on
surveillance of the vicinity of a cemetery where the sale and use of dangerous drugs are rampant. A man
with reddish eyes was walking unsteadily moving towards them but veered away when he sensed the
presence of policemen. They approached him, introduced themselves as police officers and asked him
what he had clenched in his hand. As he kept mum, the policemen pried his hand open and found a
sachet of shabu, a dangerous drug. Accordingly charged in the Regional Trial Court, the accused
objected to the admission in evidence of the dangerous drug because it was the result of an illegal search
and seizure.

Rule on the objection.

ANSWER: The objection should be denied on the ground that the dangerous drug was based on
reasonable suspicion and the result of a stop and search measure employed by law enforcement
officers in accordance with the “stop and frisk” doctrine enunciated in Terry v. Ohio (392 U.S. 1
[1968]).

The case at bar has similar facts to Manalili v. Court of Appeals (280 SCRA 400 [1997]), where the
accused had red eyes and was walking unsteadily in a place known as a hang-out of drug addicts.
The police officers had sufficient reason based on reasonable suspicion to stop the accused and frisk
him. Since shabu was actually found during the investigation, it could be seized without the need
for a search warrant.
 5

XI

Dino has a telephone line with an extension. One day, Dino was talking to Lino over the telephone,
Dino conspired with his friend Rino, who was at the end of the extension line listening to Dino’s
telephone conversation with Lino in order to overhear and tape-record the conversation wherein
Lino confidentially admitted that with evident premeditation, he killed Mino for having cheated
him in their business partnership. Lino was not aware that the telephone conversation was being
tape-recorded.

In the criminal case against Lino for murder, is the tape-recorded conversation containing the
admission of Lino admissible in evidence?

ANSWER: No, the tape-recorded conversation is not admissible. As held in Salcedo-Ortañez v.

Court of Appeals (235 SCRA 111 [1994]), Republic Act No. 4200 makes the tape-recording of a
telephone conversation done without the authorization of all the parties to the conversation
violated the guarantee of privacy of communications enunciated in Section 3, Article III of the
Constitution.

XII

Is certification of food as halal, that is, suitable for consumption by Muslims according to their
religious belief, a religious exercise?

ANSWER: Yes, the certification of food as halal to make it suitable for consumption by Muslims
according to their religious belief is an exercise of freedom of religion under Section 5, Article III of
the Constitution as ruled by the Supreme Court in Islamic Da’wah Council of the Philippines v.
Executive Secretary (G.R. No. 153888, 9 July 2003).

Hence, a government agency such as the Office of Muslim Affairs may not perform the function of
halal certification of food, as this is a religious exercise and is protected under freedom of religion
clause which provides that “no law shall be made…prohibiting the free exercise of religion” (Section
5, Article III of the Constitution).

XIII

Are government workers allowed to strike?

ANSWER: No, government workers are not given the right to strike as held in the case of SSS
Employees Association v. Court of Appeals (175 SCRA 686). However, they may form or join
employees associations under the freedom of association clause of the Constitution.

XIV

a) What is the doctrine of incorporation?

ANSWER: The doctrine of incorporation is enshrined in Section 2, Article II of the Constitution

which provides that “the Philippines adopts the generally accepted principles of international law as
part of the law of the land.” The generally accepted principles of international law are incorporated
into Philippine law without need of an enabling statute from Congress.

b) On December 28, 2000, the Philippines signed the Rome Statute of the International Criminal
Court, through a member of the Philippine Mission to the United Nations. The President of the
Philippines, however, did not ratify the treaty.

May the Executive Secretary and the Department of Foreign Affairs be compelled by mandamus to
transmit to the Senate a copy of the Rome Statute signed by a member of the Philippine Mission to
the United Nations even without the signature of the President?

ANSWER: No, the Executive Secretary and the Department of Foreign Affairs cannot be
compelled by mandamus because it is beyond the jurisdiction of the Court to compel the executive
branch of the government to transmit the signed text of the Rome Statute to the Senate without the
signature of the President.

In Pimentel v. Office of the Executive Secretary (G.R. No. 158088, 6 July 2005), the Supreme Court
held that under the Constitution, the power to ratify is vested in the President, subject to the
concurrence of the Senate. The role of the Senate is limited only to giving or withholding its
consent, or concurrence, to the ratification.

Hence, it is within the authority of the President to refuse to submit a treaty to the Senate, or having
secured its consent for its ratification, refuse to ratify it. Although the refusal of a state to ratify a
treaty which has been signed in its behalf is a serious step that should not be taken lightly, the
decision is within the competence of the President alone, which cannot be encroached by the courts
through a writ of mandamus.
 6

XV

Is a provision of law in the General Appropriations Act which set aside an amount for the
Countryside Development Fund or “pork barrel” valid or not?

ANSWER: The Countryside Development Fund or “pork barrel” is valid and so is the provision in
the General Appropriations Act which set aside an amount to be used for “infrastructure, purchase
of ambulances and computers and other priority projects and activities, and credit facilities to
qualified beneficiaries” as proposed and identified by officials concerned. The officials concerned
were all Congressmen, Senators and the Vice President who were each allocated an amount.

In the case of Philippine Constitution Association v. Enriquez (235 SCRA 506), the Supreme Court
upheld the validity of said provision of law as not an encroachment into legislative power since
Congress itself had specified the uses of the fund and that the power given to the enumerated
officials was merely recommendatory to the President who would approve or disapprove the same.

XVI

The Department of Education (DepEd) requires that any school applying for a tuition fee increase
must, as a condition for the increase, offer full tuition scholarships to students from low-income
families. The Sagrada Familia Elementary School is a Catholic school and has applied for a tuition
fee increase. Under this regulation by the DepEd, it will end up giving tuition scholarships to a total
of 21 students next year. At a cost of P50,000 per student, the school will lose a total of P1.05
million for next year.

a) Is this DepEd requirement valid?

ANSWER: No. This DepEd requirement is not valid because it would constitute a deprivation of
property without due process of law. The law is confiscatory as it unduly shifts the burden of
providing for the welfare of the poor to the private sector. The objective may be laudable but the
means would be arbitrary and unreasonable. (Quezon City v. Judge Ericta, G.R. No. 34195, 24 June
1983)

b) If instead the DepEd requires a full tuition scholarship for the highest ranking students in each
grade, determined solely on the basis of academic grades and rank, will the DepEd requirement be
valid?

ANSWER: No, this would not make any difference in my answer as this would still constitute a
deprivation of property without due process of law. (Balacuit v. Court of First Instance, G.R. No.
38429, 30 June 1988)

XVII

The Provincial Governor of Batanes requested the Department of Budget and Management (DBM)
to release its Internal Revenue Allocation (IRA) of P100 million for the current budget year.
However, the General Appropriations Act provided that the IRA may be released only if the
province meets certain conditions as determined by an Oversight Council created by the President.

a) Is this requirement valid?

ANSWER: No, this requirement is not valid. Under the Constitution, it is provided that “local
government units (LGUs) shall have a just share, as determined by law, in the national taxes which
shall be automatically released to them.”

As held in the case of Alternative Center for Organizational Reforms and Development, et al. v.
Zamora (G.R. No. 144256, 8 June 2005), a basic feature of local fiscal autonomy is the automatic
release of the shares of LGUs in the national internal revenue. This is mandated by no less than the
Constitution. The Local Government Code specifies further that the release shall be made directly to
the LGU concerned within five (5) days after every quarter of the year and “shall not be subject to
any lien or holdback that may be imposed by the national government for whatever purpose.”

b) The Provincial Governor is a party mate of the President. May the Batanes Representative
instead file a petition to compel the DBM to release the funds?

ANSWER: Yes, the Batanes Representative may file a petition for mandamus to compel the
release of funds as a suit may lie against a public officer to compel the performance of a ministerial
function or duty required by law.

A congressman from a particular LGU may validly have standing to demand that the IRA for his
province be released in accordance with the Constitution and the Local Government Code. As a
representative of his province, he has a responsibility towards his constituencies who can expect no
less than faithful compliance with the Constitution. Moreover, the issue presented could be
 7

characterized as involving transcendental importance to the people and the local government units
which had been guaranteed greater local autonomy.

XVIII

Armed with high-powered ammunitions and explosives, some three hundred junior officers and
enlisted men of the Armed Forces of the Philippines (AFP) stormed into the Oakwood Premiere
apartments in Makati City in the wee hours of July 27, 2003. Bewailing the corruption in the AFP,
the soldiers demanded, among other things, the resignation of the President, the Secretary of
Defense and the Chief of the Philippine National Police (PNP).

In the wake of the Oakwood occupation, the President issued later in the day Proclamation No. 427
and General Order No. 4, both declaring “a state of rebellion” and calling out the Armed Forces to
suppress the rebellion.

Mamamayan tanging Lakas ng Bayan (MALAKAS), a cause-oriented group advocating the

protection of civil liberties, filed an action before the Supreme Court questioning Proclamation No.
427 and General Order No. 4, questioning both the state of rebellion and the calling out power of
the President.

a) Is the declaration of a state of rebellion and the exercise of the President’s calling out power a
valid exercise of the President’s executive powers? Explain fully.

ANSWER: Yes. The President in calling out the armed forces and in declaring a state of rebellion,
validly exercises her powers as Chief Executive and Commander-in-Chief of the Armed Forces of
the Philippines. In calling out the armed forces to prevent or suppress lawless violence, invasion or
rebellion, as the public safety requires it, the declaration of a state of rebellion is an utter
superfluity.

The petitions do not cite a specific instance where the President has attempted to or has exercised
powers beyond her powers as Chief Executive or as Commander-in-Chief. The President, in
declaring a state of rebellion and in calling out the armed forces, was merely exercising a wedding
of her Chief Executive and Commander-in-Chief powers. These are purely executive powers,
vested on the President by Sections 1 and 18, Article VII, as opposed to the delegated legislative
powers contemplated by Section 23 (2), Article VI.
In Sanlakas v. Executive Secretary (G.R. No. 159085, 3 February 2004), the Supreme Court held
that in calling out the armed forces, a declaration of a state of rebellion is an utter superfluity. At
most, it only gives notice to the nation that such a state exists and that the armed forces may be
called to prevent or suppress it. Perhaps the declaration may wreak emotional effects upon the
perceived enemies of the State, even on the entire nation. But this Court’s mandate is to probe only
into the legal consequences of the declaration. This Court finds that such a declaration is devoid of
any legal significance. For all legal intents, the declaration is deemed not written.
Should there be any “confusion” generated by the issuance of Proclamation No. 427 and General
Order No. 4, we clarify that, as the dissenters in Lacson v. Perez (G.R. No. 147780, May 10, 2001,
357 SCRA 757, 762) correctly pointed out, the mere declaration of a state of rebellion cannot
diminish or violate constitutionally protected rights. Indeed, if a state of martial law does not
suspend the operation of the Constitution or automatically suspend the privilege of the writ of
habeas corpus, then it is with more reason that a simple declaration of a state of rebellion could not
bring about these conditions. At any rate, the presidential issuances themselves call for the
suppression of the rebellion “with due regard to constitutional rights.”
b) Can the military and police authorities conduct warrantless arrests of persons in a state of
rebellion?
ANSWER: No, military and police authorities may resort to warrantless arrests of persons
suspected of rebellion if the circumstances warrant and in accordance with Section 5, Rule 113 of
the Rules of Court, regardless of whether the President has declared a state of rebellion or not.
In Lacson vs. Perez, supra, majority of the Court held that “[i]n quelling or suppressing the
rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as
provided under Section 5, Rule 113 of the Rules of Court, if the circumstances so warrant. The
warrantless arrest feared by petitioners is, thus, not based on the declaration of a “state of
rebellion.” In other words, a person may be subjected to a warrantless arrest for the crime of
rebellion whether or not the President has declared a state of rebellion, so long as the requisites for
a valid warrantless arrest are present.
*Additional notes on the calling out power of the President and the declaration of a
state of rebellion under Sanlakas v. Executive Secretary, supra: It is not disputed that
the President has full discretionary power to call out the armed forces and to determine the
necessity for the exercise of such power. While the Court may examine whether the power was
exercised within constitutional limits or in a manner constituting grave abuse of discretion, none of
the petitioners here have, by way of proof, supported their assertion that the President acted
without factual basis.
The above provision grants the President, as Commander-in-Chief, a “sequence” of “graduated
power[s].” From the most to the least benign, these are: the calling out power, the power to suspend
 8

the privilege of the writ of habeas corpus, and the power to declare martial law. In the exercise of
the latter two powers, the Constitution requires the concurrence of two conditions, namely, an
actual invasion or rebellion, and that public safety requires the exercise of such power. However, as
we observed in Integrated Bar of the Philippines v. Zamora, “[t]hese conditions are not required in
the exercise of the calling out power. The only criterion is that ‘whenever it becomes necessary,’ the
President may call the armed forces ‘to prevent or suppress lawless violence, invasion or rebellion.’”
Nevertheless, it is equally true that Section 18, Article VII does not expressly prohibit the President
from declaring a state of rebellion. Note that the Constitution vests the President not only with
Commander-in-Chief powers but, first and foremost, with Executive powers.

XIX

a) Romy Lagunilla was duly elected and served two consecutive terms as municipal mayor of San
Antonio, Zambales prior to the May 8, 1995 elections. In the May 1995 elections Lagunilla ran for
mayor of San Antonio, Zambales and was again proclaimed winner. He assumed office and
discharged the duties thereof. His proclamation in 1995 was however contested by his then
opponent Jose Alvez who filed an election protest before the Regional Trial Court of Zambales,
which in a decision dated January 9, 1997 declared a failure of elections.

Both parties appealed to the Commission on Elections (COMELEC). The COMELEC resolved the
election protest filed by Alvez and after a revision and re-appreciation of the contested ballots
declared Alvez the duly elected mayor of San Antonio, Zambales by plurality of votes cast in his
favor totaling P1,720 votes as against 1,488 votes for Lagunilla. Subsequently, the COMELEC issued
a writ of execution ordering Longganiza to vacate the post, which he obeyed, and Alvez assumed
office for the remainder of the term.

In the May 11, 1998 elections Lagunilla again filed his certificate of candidacy for mayor of San
Antonio. On April 21, 1998 his opponent Eufemio Muli timely filed a petition to disqualify Lagunilla
from running for mayor of San Antonio in the 1998 elections on the ground that he had served
three consecutive terms in the same post. On May 13, 1998, Lagunilla was proclaimed winner. On
May 21, 1998 the First Division of the COMELEC issued the questioned resolution granting the
petition for disqualification upon a finding that Lagunilla had served three consecutive terms as
mayor of San Antonio, Zambales and he is therefore disqualified to run for the same post for the
fourth time. The COMELEC found that Lagunilla's assumption of office by virtue of his
proclamation in May 1995, although he was later unseated before the expiration of the term, should
be counted as service for one full term in computing the three term limit under the Constitution and
the Local Government Code. The finding of the COMELEC First Division was affirmed by the
COMELEC En Banc in a resolution dated August 11, 1998.

Is the COMELEC correct in disqualifying Lagunilla from assuming the office of Mayor?

ANSWER: No, the COMELEC is not correct in disqualifying Lagunilla from assuming the office of
Mayor of San Antonio, Zambales in 1998 since he cannot be considered as having been duly elected
to the post in the May 1995 elections and because he did not fully serve the 1995-1998 mayoral term
by reason of involuntary relinquishment of office, that is, the protest of his opponent was upheld
whereby Lagunilla was ousted from the office of mayor by the COMELEC.

In Lonzanida v. Commission on Elections, G.R. No. 135150, 28 July 1999, a case with the same or
similar facts and circumstances as the instant case, the Supreme Court held that the two requisites
for the application of the three term rule are absent. First, the petitioner cannot be considered as
having been duly elected to the post in the May 1995 elections, and second, the petitioner did not
fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. After a
re-appreciation and revision of the contested ballots the COMELEC itself declared by final
judgment that petitioner Lonzanida lost in the May 1995 mayoral elections and his previous
proclamation as winner was declared null and void. His assumption of office as mayor cannot be
deemed to have been by reason of a valid election but by reason of a void proclamation. It has been
repeatedly held by this court that a proclamation subsequently declared void is no proclamation at
all 5 and while a proclaimed candidate may assume office on the strength of the proclamation of the
Board of Canvassers he is only a presumptive winner who assumes office subject to the final
outcome of the election protest. Petitioner Lonzanida did not serve a term as mayor of San Antonio,
Zambales from May 1995 to March 1998 because he was not duly elected to the post; he merely
assumed office as presumptive winner, which presumption was later overturned by the COMELEC
when it decided with finality that Lonzanida lost in the May 1995 mayoral elections.

In the present case, Lagunilla did not serve as mayor from May 1995 to March 1998 because he is
not duly elected to the post. He merely assumed office as the presumptive winner which was
subsequently overturned by the COMELEC when it decided with finality that Lagunilla lost in the
May 1995 elections. He is therefore not deemed to have served three consecutive terms due to the
interruption in the May 1995 elections where he lost the election.

The COMELEC was therefore not correct in disqualifying Lagunilla from assuming the office of
Mayor of San Antonio, Zambales in 1998 since he cannot be considered as having been duly elected
to the post in the May 1995 elections. He did not fully serve the 1995-1998 mayoral term by reason
of involuntary relinquishment of office.
 9

b) In the May 1998 elections, Jimmy Pedro and Bruce Vera were elected Governor and Vice-
Governor of Misamis Oriental, respectively. Upon the death of Jimmy Pedro as provincial governor,
Vice-Governor Bruce Vera succeeded as governor and served for the remaining portion of the term
of office. In the May 2001 elections, Bruce Vera ran and won as governor for the full term. In the
May 2004 elections Vera ran and won for reelection as governor. In the May 2007 elections, Vera
filed his certificate of candidacy for the same position as governor, but his rival gubernatorial
candidate sought his disqualification alleging violation of the three term limit for local elective
officials provided for in the Constitution and the Local Government Code.

Will the disqualification case prosper?

ANSWER: No, the disqualification case will not prosper because Bruce Vera is still eligible to run
for a third term.

In Borja v. Commission on Elections (G.R. No. 133495, 3 September 1998), the three term limit
imposed on a local official is to be understood to refer to terms for which the official concerned was
elected. Thus, a person who was elected Vice Mayor in 1988 and who, because of the death of the
Mayor, became Mayor in 1989, may still be eligible to run for the position of Mayor in 1998, even if
elected as such in 1992 and 1995.

By analogy, the Borja case can apply to the case of a Vice-Governor who succeeds the provincial
Governor, such as in the case at bar. Hence, Vera can run for governor in the May 2007 elections
because he served his first term only in 2004, which was the term for which he was first elected.
Succeeding to the position of governor from vice-governor does not count as a term for which the
official concerned (Vera) was elected. The application of the three term limit as enunciated in Borja
starts in 2004, the term for which Governor Vera was first elected to serve his term as governor.

NOTE: In Adormeo v. Commission on Elections (G.R. No. 147927, 4 February 2002), the Court
held that it is not enough that an individual has served three consecutive terms in an elective local
office. He must also have been elected to the same position for the same number of times before the
disqualification can apply.

c) Joe Wong was born in Sagay, Negros Occidental, of Filipino parents, in 1970. In 1990, he enlisted
in the United States Air Force. He took an oath of allegiance to the United States. In 1997, he
became a naturalized American. In February 2005, he returned to Sagay and by December of that
same year, he took an oath of allegiance to the Philippines to comply with the requirement under
Rep. Act No. 2430. During the 2007 elections, he ran and won as Congressman of the first district
of Negros Occidental where he has resided since February 2005.

Is he qualified to run for Congressman of the first district of Negros Occidental?

ANSWER: Yes, Joe Wong is qualified to run for Congressman of the first district of Negros
Occidental because he reacquired the status of a natural-born Filipino citizen by complying with the
requirements under Rep. Act No. 2430 for a valid repatriation.

In Bengzon v. House of Representatives Electoral Tribunal, G.R. No. 142840, 17 May 2001, the
Court held that a former natural born Filipino citizen who became a naturalized American may
reacquire his citizenship as a natural born Filipino by complying with the requirement under Rep.
Act No. 2430, that of taking an oath of allegiance to the Philippines, which constitutes an act of
valid repatriation. The act of repatriation allows the person to recover or return to, his original
status before he lost his Philippine citizenship. Thus, respondent Cruz in Bengzon, a former natural
born Filipino citizen who lost his Philippine citizenship when he enlisted in the United States
Marine Corps, was deemed to have recovered his natural born status when he reacquired Filipino
citizenship through repatriation.

In the present case, Joe Wong complied with the requirements under Rep. Act No. 2430 for a valid
repatriation, which is an oath of allegiance to the Philippines, thus enabling him to reacquire his
status as a natural born Filipino. Joe Wong is therefore eligible to run for Congressman of the first
district of Negros Occidental.

d) Congress enacted Rep. Act No. 9189, otherwise known as the Overseas Absentee Voting Act of
2003. MAKISIG, a cause-oriented group concerned with reforming the Philippine electoral system,
challenged the constitutionality of the law, specifically, Section 5 (d) of Rep. Act No. 9189. Section 5
(d) provides that among those disqualified to vote is an immigrant or a permanent resident (of
another country) who is recognized as such in the host country, unless he/she executes an affidavit
declaring that he/she shall resume actual, physical, permanent residence in the Philippines not
later than three years from approval of his/her registration under the said Act, and that he/she had
not applied for citizenship in another country.

Is this law constitutional?

ANSWER: Yes, because the spirit and intent of Congress in enacting Rep. Act No. 9189 is to
enfranchise overseas qualified Filipinos.

In Macalintal v. Commission on Elections (G.R. No. 157013, 10 July 2003), the Supreme Court
ruled that inasmuch as the essence of Rep. Act No. 9189 is to enfranchise overseas qualified
 10

Filipinos, the Court should take a holistic view of the pertinent provisions of both the Constitution
and Rep. Act No. 9189.

The law was enacted in faithful obeisance to the mandate of the first paragraph of Section 2, Article
V of the Constitution, which states that Congress shall provide a system for voting by qualified
Filipinos abroad. It must be stressed that Section 2 does not provide for the parameters of the
exercise of legislative authority in enacting said law. Hence, in the absence of restrictions, Congress
is presumed to have exercised its function as defined in Article VI of the Constitution.

Rep. Act No. 9189 is therefore constitutional.

XX

The Samahan ng mga Periodista sa Pilipinas (SPP) filed with the Office of the Mayor of the City of
Manila an application for persons to hold a rally on Mendiola Street on September 5, 2006 from 10
am to 3 pm to protest the political killings of journalists. However, the Mayor of Manila denied
their application on the ground that a rally at the time and place applied for will block the traffic in
the San Miguel and Quiapo districts. He suggested the Liwasang Bonifacio, which has been
designated a freedom park, as venue for the rally.

a) Does the SPP have a remedy to contest the denial of its application for a rally permit?

ANSWER: Yes, SPP has a remedy. Under B.P. Blg. 880, otherwise known as the Public Assembly
Act of 1985, in the event of denial of the application for a permit, the applicant may contest the
decision in an appropriate court of law. The court must decide within twenty four (24) hours from
the date of filing of the case. Said decision may be appealed to the appropriate court within forty
eight (48) hours after receipt of the same. In all cases, any decision may be appealed to the Supreme
Court. (Bayan Muna v. Ermita, G.R. No. 169838, 25 April 2006)

b) Does the availability of a freedom park justify the denial of SPP’s application for a rally permit?

ANSWER: No, the availability of a freedom park does not justify the denial of the permit. It does
imply that no permits are required for activities in freedom parks. Under B.P. Blg. 880, the denial
may be justified only if there is a clear and present danger to public order, public safety, public
convenience, public morals or public health. (Bayan Muna v. Ermita, supra)

c) Does the requirement to apply for a permit to hold a rally constitute prior restraint?

ANSWER: No. the requirement for a permit to hold a rally is not a prior restraint on freedom of
speech and assembly.

The Supreme Court has held in Bayan Muna v. Ermita, supra, that the permit requirement is valid,
referring to it as regulation of the time, place, and manner of holding public assemblies, but not the
content of the speech itself.

Thus, there is no prior restraint, since the content of the speech is not relevant to the regulation.

d) Assuming that despite the denial of SPP’s application for a rally permit, its members hold a rally,
prompting the police to arrest them. Are the warrantless arrests lawful?

ANSWER: No, the arrests are unlawful because what is prohibited and penalized under Sec. 13 (a)
and 14 (a) of B.P. Blg. 880 is “the holding of any public assembly as defined in this Act by any
leader or organizer without having first secured that written permit where a permit is required from
the office concerned…Provided, however, that no person can be punished or held criminally liable
for participating in or attending an otherwise peaceful assembly.”

Thus, only the leader or organizer of the rally without a permit may be arrested without a warrant
while the members may not be arrested, as they cannot be punished or held criminally liable for
attending the rally. However, under Sec. 12 of B.P. Blg. 880, when the public assembly is held
without a permit where a permit is required, the said public assembly may be peacefully dispersed.

XXI

a) What is the Calling-Out Power of the President?

ANSWER: Under Section 18, Article VII of the Constitution, whenever it becomes necessary, the
President, as Commander-in-Chief, may call out the armed forces to aid him in preventing or
suppressing lawless violence, invasion or rebellion.

b) On February 24, 2006, the President issued Proclamation 1017 declaring a state of national
emergency. Is this Proclamation constitutional?

ANSWER: The proclamation is constitutional insofar as it constitutes a call by the President for
the Armed Forces of the Philippines to prevent or suppress lawless violence as this is sustained by
Section 18, Article VII of the Constitution.
 11

However, Presidential Proclamation 1017’s provisions giving the President express or implied
power (1) to issue decrees; (2) to direct the Armed Forces of the Philippines to enforce obedience to
all laws even those not related to lawless violence as well as decrees promulgated by the President;
and (3) to impose standards on media or any form of prior restraint on the press, are ultra vires
and unconstitutional.

Likewise, under Section 17, Article XII of the Constitution, the President, in the absence of
legislation, cannot take over privately-owned public utilities and businesses affected with the public
interest. (David v. Arroyo, G.R. No. 171396, 3 May 2006)

c) During the effectivity of Proclamation No. 1017, Jim, Jam and Jon were arrested by the police for
acts of terrorism. Is the arrest legal?

ANSWER: The arrest, apparently done without a valid warrant, is illegal.

However, a warrantless arrest would be valid if those accused are caught committing crimes en
flagrante delicto. On the other hand, if the arrest is made pursuant to a valid warrant, then it is
lawful. The term “acts of terrorism” has not been legally defined and made punishable by Congress
in any law enacted until 24 February 2006. No law has been enacted to guide the law enforcement
agents, and eventually the courts, to determine the limits in making arrests for the commission of
said acts of terrorism. (David v. Arroyo, supra)

XXII

The President issued Proclamation No. 1081 placing the Philippines under a state of martial law on
the ground that a rebellion staged by lawless elements is endangering the public safety. Pursuant to
the Proclamation, suspected rebels were arrested and detained and military tribunals were set up to
try them. Jose Cruz, a citizen of the Philippines, filed with the Supreme Court a petition questioning
the validity of Proclamation No. 1081.

a) Does Jose have standing to challenge Proclamation No. 1081?

ANSWER: Yes, Jose has standing. Under Section 17, Article VIII of the Constitution, the Supreme
Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual
basis of the proclamation of martial law. As a Filipino citizen, therefore, Jose may file the petition
questioning Proclamation No. 1081.

b) In the same action, the Solicitor General contends that under the Constitution, the President as
Commander-in-Chief determines whether the exigency has arisen requiring the exercise of his
power to declare martial law and that his determination is conclusive upon the courts. Rule on this
contention.

ANSWER: The Supreme Court should rule that his determination is not conclusive upon the
courts.

The Constitution allows a citizen, in an appropriate proceeding, to file a petition questioning the
sufficiency of the factual basis of said proclamation. Moreover, the power to suspend the privilege
of the writ of habeas corpus and the power to impose martial law involve the curtailment and
suppression of certain basic civil rights and individual freedoms, and thus necessitate safeguards by
Congress and review by the Supreme Court. This doctrine is clearly laid down in Integrated Bar of
the Philippines v. Zamora (G.R. No. 141284, 15 August 2000).

c) The Solicitor General argues that, in any event, the determination of whether the rebellion poses
danger to public safety involves a question of fact and the Supreme Court is not a trier of facts. Rule
on this contention.

ANSWER: Under Section 1, paragraph 2, Article VIII of the Constitution, judicial power includes
the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government.

When the grant of power is qualified, conditional or subject to limitations, the issue of whether the
prescribed qualifications or conditions have been met or the limitations respected, is justiciable –
the problem being one of legality or validity, not its wisdom.

Section 18 of Article VII specifically grants the Supreme Court the power to review, in an
appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation
of martial law. Thus, in the matter of such declaration, two conditions must concur as enunciated in
Integrated Bar of the Philippines v. Zamora, supra: (1) there must be an actual invasion or
rebellion; and (2) public safety must require it. The Supreme Court cannot renege on its
constitutional duty to determine whether or not the said factual conditions exist.
 12

d) The Solicitor General maintains that the President reported to Congress such proclamation of
martial law, but Congress did not revoke the proclamation. What is the effect of the inaction of
Congress on the suit brought by Jose to the Supreme Court?

ANSWER: The inaction of Congress has no effect on the suit brought by Jose to the Supreme
Court as Section 18, Article VII of the Constitution provides for checks on the President’s power to
declare martial law to be exercised separately by Congress and the Supreme Court. Under this
provision, the duration of martial law shall not exceed sixty (60) days but Congress has the power
to revoke the proclamation or extend the period.

On the other hand, the Supreme Court has the power to review the said proclamation and
promulgate its decision thereon within thirty (30) days from its filing.

XXIII

The Secretary of Justice and the National Telecommunications Commission (NTC) issued press
statements prohibiting the public broadcast of the Hello, Garci discs.

Do these acts constitute prior restraint?

ANSWER: Yes, the prohibition issued by the Secretary of Justice and the National
Telecommunications Commission are acts which constitute prior restraint, thus violating the
constitutional guarantee of freedom of speech and of the press under Section 4, Article III of the
Constitution.

In the case of Chavez v. Gonzales, G.R. No. 168338, 15 February 2008, respondent Secretary of
Justice Raul Gonzales made his statements as Secretary of Justice, while the NTC issued its
statement as the regulatory body of media to prevent the broadcast over radio stations of the Hello,
Garci discs. Any act done, such as a speech uttered, for and on behalf of the
government in an official capacity is covered by the rule on prior restraint. The
concept of an “act” does not limit itself to acts already converted to a formal order or
official circular. Otherwise, the non formalization of an act into an official order or
circular will result in the easy circumvention of the prohibition on prior restraint.
The press statements are acts that should be struck down as they constitute impermissible forms of
prior restraints on the right to free speech and press.

There is enough evidence of chilling effect of the complained acts on record. The warnings
given to media came from no less the NTC, a regulatory agency that can cancel the Certificate of
Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter
ego of the Executive, who wields the awesome power to prosecute those perceived to be violating
the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an
ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this
battle for freedom of speech and of the press. This silence on the sidelines on the part of some
media practitioners is too deafening to be the subject of misinterpretation.

The constitutional imperative for us to strike down unconstitutional acts should always be exercised
with care and in light of the distinct facts of each case. For there are no hard and fast rules when it
comes to slippery constitutional questions, and the limits and construct of relative freedoms are
never set in stone. Issues revolving on their construct must be decided on a case to case basis,
always based on the peculiar shapes and shadows of each case. But in cases where the challenged
acts are patent invasions of a constitutionally protected right, we should be swift in striking them
down as nullities per se. A blow too soon struck for freedom is preferred than a blow too
late.

The acts of the Secretary of Justice and the National Telecommunications Commission, specifically
the press statements issued against the public broadcast of the Hello, Garci discs over radio
stations constitute prior restraint and an abridgment of the constitutional guarantees of freedom of
speech and of the press.

XXIV

What are the kinds and sizes of private lands which former natural born citizens of the Philippines
are allowed to acquire?

ANSWER: Under Republic Act No. 8179, which added Section 10 to Republic Act No. 7042 or the
Foreign Investments Act of 1991, former natural born citizens of the Philippines are allowed to be
transferees of private lands, urban or rural, with the following maximum sizes: 5,000 square meters
for urban land, and 3 hectares for rural land. The purposes allowed are for business or other
purposes. (previously, only for residential purposes)

XXV

Does the Ombudsman have administrative disciplinary jurisdiction over judges?

 13

ANSWER: No, the Ombudsman does not have administrative disciplinary jurisdiction over judges
as this would violate the doctrine of separation of powers between the executive and judicial
branches of government.

An investigation conducted by the Ombudsman on a complaint against a judge who allegedly

falsified his certificate of service encroaches into the Supreme Court’s power of administrative
supervision over all courts and its personnel in violation of the doctrine of separation of powers.
Section 6, Article VIII of the Constitution exclusively vests in the Supreme Court administrative
supervision over all courts and court personnel, from the Presiding Justice of the Court of Appeals
down to the lowest municipal trial court clerk. This was the ruling laid down in Maceda v. Vasquez
(221 SCRA 464 [1993]).

In Maceda v. Vasquez, the Supreme Court ruled that where a criminal complaint against a judge or
other court employee arises from their administrative duties, the Ombudsman must defer action on
said complaint and refer the same to the Supreme Court for determination whether said judge or
court employee had acted within the scope of their administrative duties.

XXVI

a) What is the doctrine of primary jurisdiction?

ANSWER: The doctrine of primary jurisdiction, also referred to as the doctrine of prior resort or
the doctrine of primary administrative jurisdiction, states that no resort to the courts may be made
before resort to an administrative body, which has competence or jurisdiction vested upon such
administrative body to act upon a matter, shall have acted upon the same.

b) What is the doctrine of exhaustion of administrative remedies?

ANSWER: The doctrine of exhaustion of administrative remedies means that when an adequate
remedy is available within the Executive Department, a litigant must first exhaust this remedy
before he can resort to the courts. The purpose of the doctrine is to enable the administrative
agencies to correct themselves if they have committed an error.

c) What are the exceptions to the application of the doctrine of exhaustion of administrative
remedies?

ANSWER: The following are the exceptions to the application of the doctrine of exhaustion of
administrative remedies:

1. The question involved is purely legal;

2. The administrative body is in estoppel;
3. The act complained of is patently illegal;
4. There is an urgent need for judicial intervention;
5. The claim involved is small;
6. Grave and irreparable injury will be suffered;
7. There is no other plain, speedy and adequate remedy;
8. Strong public interest is involved;
9. The subject of the controversy is private law;
10. The case involves a quo warranto proceeding;
11. The party was denied due process;
12. The decision is that of a Department Secretary (applying the doctrine of qualified political
agency);
13. Resort to administrative remedies would be futile;
14. There is unreasonable delay;
15. The action involves recovery of physical possession of public land;
16. The party is poor; and
17. The law provides for immediate resort to the court.

XXVII

What are the primary and subsidiary sources of international law? Give an illustration of each.

ANSWER: Under Article 38 of the Statute of the International Court of Justice, the primary
sources of international law are the following:

1. International conventions, examples of which are the Vienna Convention on the Law of
Treaties and the United Nations Convention on the Law of the Sea;
2. International customs, examples of which are cabotage, the prohibition against slavery, and the
prohibition against torture;
3. General principles of law recognized by civilized nations, examples of which are prescription,
res judicata and due process.

The subsidiary sources of international law are judicial decisions, subject to the provisions of Article
59, examples of which are the decisions of the International Court of Justice in the Anglo-
Norwegian Fisheries Case and Nicaragua v. United States, and the teachings of the most highly
 14

qualified publicists of various nations, examples of which are Human Rights in International Law
by Lauterpacht and International Law by Oppenheim-Lauterpacht.

XXVIII

a) What is the concept of the exclusive economic zone under the 1982 United Nations Convention
on the Law of the Sea?

ANSWER: The exclusive economic zone under the 1982 United Nations Convention on the Law of
the Sea is an area beyond and adjacent to the territorial sea, which shall not extend beyond 200
nautical miles from the baselines from which the territorial sea is measured. The coastal State has
the following rights in its exclusive economic zone:

1. Sovereign rights for the purpose of exploring and exploiting, conserving and managing the
natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the
sea-bed and subsoil, and with regard to other activities for the economic exploitation and
exploration of the zone, such as the production of energy from the water, currents and winds;

2. Jurisdiction as provided in the relevant provisions of the Convention with regard to:

i) the establishment and use of artificial islands, installations and structures;

ii) marine scientific research; and
iii) the protection and preservation of the marine environment;

3. Other rights and duties provided for in the Convention. (Article 56 of the United Nations
Convention on the Law of the Sea)

b) What is the archipelagic principle?

ANSWER: An archipelago is a body of water studded with islands. The archipelagic principle
states that an archipelago, which is a body of water studded with islands, or islands surrounded
with water, is viewed as a unity of islands and waters together forming one integrated unit. The
outermost points of the archipelago are connected with straight baselines. The archipelagic
principle serves a two-fold purpose: (1) economic reasons; (2) national security. The main purpose
of the archipelagic principle is to protect the territorial interests of an archipelago.

The Philippine archipelago is that body of water studded with islands which is delineated in the
Treaty of Paris of December 10, 1898, as modified by the Treaty of Washington of November 7,
1900 and the Treaty of Great Britain of January 2, 1930. These are the same treaties which
delineated Philippine territory in Article I of the Constitution.

ALTERNATIVE ANSWER: The archipelagic principle (or archipelagic doctrine) is a principle in

international law which views a body of water studded with islands, or islands surrounded with
water, as a unity of islands and waters together forming one integrated unit. It applies the straight
baselines method in connecting the outermost points of the archipelago with straight baselines. The
waters enclosed on the landward side of the drawing of straight baselines are to be regarded as
internal waters, in accordance with Article I of the Constitution.

The archipelagic principle is adopted in the 1987 Constitution when it provides that, “[t]he national
territory comprises the Philippine archipelago, with all the islands and waters embraced therein”
and that “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.”

The archipelagic principle (or archipelagic doctrine) has a two-fold purpose: (1) economic purpose;
and (2) national security. The main purpose of the archipelagic principle is to protect the territorial
interests (also known as the territorial integrity of an archipelago. If we follow the old rule of
international law, it is possible that between the islands, there would be high seas if the distance
between such islands is more than 24 miles. Thus, foreign vessels would be able to enter at will,
anytime.

c) What is the extent of the Philippine claim to its aerial domain, territorial sea, the seabed, the
subsoil, the insular shelves and other submarine areas?

ANSWER: The Philippines lays claim to them to the extent recognized by international law. The
definition of these areas and right of the Philippines over these areas are provided for in customary
and conventional international law. For instance, the Philippine claim to parts of the seas, the
seabed, the subsoil and the insular shelves are subject to the 1982 United Nations Convention on
the Law of the Sea to which the Philippines is a signatory. As to the airspace, the Philippine claims
sovereignty over the airspace above its land mass and territorial sea up to the height where the
outer space begins. The Philippines also adheres to the Chicago Convention on International Civil
Aviation of 1944.

d) What is the special claim made by the Philippines with respect to the “waters around, between
and connecting the islands of the archipelago?
 15

ANSWER: The special claim made by the Philippines treats the “waters around, between and
connecting the islands of the archipelago” as internal waters. The Philippines can exercise full
sovereignty and control over these internal waters.

e) What is the other element of the archipelagic principle?

ANSWER: The other element is the straight baselines method of delineating the territorial sea.
This consists of drawing straight lines connecting appropriate points on the coast without departing
to any appreciable extent form the general direction of the coast. These baselines divide the internal
waters from the territorial waters of an archipelago.

f) Is the Philippine position on the archipelagic principle consistent with the archipelagic principle
under the 1982 United Nations Convention on the Law of the Sea?

ANSWER: The Philippine position on the archipelagic principle deviates from the archipelagic
principle under the 1982 United Nations Convention on the Law of the Sea in the concept of
“archipelagic waters.” The vast areas of water between islands which the Philippines (under the
Constitution) considers as internal waters, and thus not subject to the right of innocent passage.

On the other hand, the 1982 Law of the Sea Convention treats archipelagic waters subject to the
right of archipelagic sea lanes passage, which is a right similar to innocent passage through
passages designated by the archipelago concerned. To recognize the concept of archipelagic waters
and the right of archipelagic sea lanes passage under the 1982 United Nations Convention on the
Law of the Sea would compromise the national security of the Philippines.

g) Has the Philippines recognized this distinction?

ANSWER: No, since it is contrary to what Article I of the Constitution states about these waters
being internal waters. For this reason, the Philippines ratified the 1982 United Nations Convention
on the Law of the Sea with reservation. The reservation of the Philippines to the Law of the Sea
Convention was articulated by Senator Arturo Tolentino.

h) What is the basis of the Philippine claim to a part of the Spratly Islands?

ANSWER: It is based on Article I of the Constitution which states” “all other territories over which
the Philippines has sovereignty or jurisdiction.”

Under Presidential Decree No. 1596, the Philippines claimed that the Kalayaan Group of Islands as
part of the Philippine territory stating that “while other states have laid claims to some of these
areas, their respective claims have lapsed by abandonment and cannot prevail over that of the
Philippines on legal, historical and equitable grounds.

Under both international law and constitutional law, the legal basis of the Philippine claim to the
Kalayaan Islands is that these islands are terra nullius, which reinforces the Philippine right to
effective occupation of these unoccupied island territory.

XXIX

Distinguish International Human Rights Law from International Humanitarian Law.

ANSWER: International human rights law is a system of laws at the domestic, regional and
international levels, designed to promote human rights. Human rights law is made up of various
international human rights instruments which are binding to its parties (nation-states that have
ratified the treaty). The three main instruments of international human rights are the Universal
Declaration of Human Rights, the International Convention on Civil and Political Rights and the
International Convention on Economic, Social and Cultural Rights. These three instruments
comprise the International Bill of Rights.

A new generation of human rights beyond civil, political, economic, social and cultural rights have
also been recognized. These include: Group and collective rights, the right to self-determination,
the right to economic and social development, the right to a healthy environment, the right to
natural resources, the right to communicate and communication rights, the right to participation in
cultural heritage, and the rights to intergenerational equity and sustainability. These evolving
human rights principles are expressed in many progressive documents of international law,
including the 1972 Stockholm Declaration of the United Nations Conference on the Human
Environment, the 1992 Rio Declaration on Environment and Development, and other pieces of
generally aspirational "soft law." Because of the principle of sovereignty and the preponderance of
would-be offender nations, these rights have been hard to enact in legally binding documents.

In principle human rights law is enforced on a domestic level and nation states that ratify human
rights treaties commit themselves to enact domestic human rights legislations.

On the other hand, international humanitarian law refers to International humanitarian law (IHL),
often referred to as the laws of war, the laws and customs of war or the law of armed conflict, is the
legal corpus "comprised of the Geneva Conventions and the Hague Conventions, as well as
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subsequent treaties, case law, and customary international law.” It defines the conduct and
responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in
relation to each other and to protected persons, usually meaning civilians.

The law is mandatory for nations bound by the appropriate treaties. There are also other customary
unwritten rules of war, many of which were explored at the Nuremberg War Trials. By extension,
they also define both the permissive rights of these powers as well as prohibitions on their conduct
when dealing with irregular forces and non-signatories.

International humanitarian law is applicable during times of armed conflict while international
human rights law is applicable in both times of peace and times of armed conflict. While the Geneva
and Hague Conventions on the Laws of War are the governing treaties of international
humanitarian law, it is the International Bill of Rights that governs respect and dignity of the basic,
inherent and inalienable human rights embodied in international human rights law.

XXX

What is the doctrine of operative facts?

ANSWER: The doctrine of operative facts states that before a law was declared unconstitutional,
its actual existence must be taken into account, and whatever was done or performed while the law
was in operation should be recognized as valid. (Rieta v. People, 436 SCRA 273 [2004])

Under the operative facts doctrine, the law is recognized as unconstitutional, but the effects of the
unconstitutional law, prior to its declaration of nullity, may be left undisturbed as a matter of equity
and fair play. In fact, the invocation of the operative fact doctrine is an admission that the law is
unconstitutional. (League of Cities and Municipalities of the Philippines v. COMELEC, G.R. No.
176951, 24 April 2010)

In keeping with the demands of equity, the Supreme Court can apply the operative fact doctrine to
acts and consequences that resulted from the reliance not only on a law or executive act which is
quasi-legislative in nature but also on decisions or orders of the executive branch which were later
nullified. (Hacienda Luisita, Inc. v. Presidential Agrarian Reform Council, G.R. No. 171101, 22
November 2011)

XXXI

What is the doctrine of necessary implication?

ANSWER: The doctrine of necessary implication states that every statute is understood by
implication to contain all such provisions as may be necessary to effectuate its object and
purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all
such collateral and subsidiary consequences as may be fairly and logically inferred from its terms.
(Pepsi-Cola Products Philippines, Inc. v. Secretary of Labor, 312 SCRA 104 [1999])

XXXII

Distinguish the overbreadth doctrine from the void-for-vagueness doctrine.

ANSWER: The overbreadth doctrine states that a governmental purpose may not be achieved by
means of a statute which is unnecessarily broad, and therefore invades the area of protected
freedom.

On the other hand, a statute is vague when it forbids or requires the doing of an act in terms so
vague that men of common intelligence cannot necessarily guess at its meaning and differ as to its
application. A statute is therefore void for being vague. (Estrada v. Sandiganbayan, 369 SCRA 394
[20011])

XXXIII

What is a heckler’s veto?

ANSWER: A heckler’s veto occurs when an acting party's right to freedom of speech is curtailed or
restricted by the government in order to prevent a reacting party's behavior.

In Feiner v. New York (340 U.S. 315 [1951]), the United States Supreme Court held that held that
police officers acted within their power in arresting a speaker if the arrest was "motivated solely by
a proper concern for the preservation of order and protection of the general welfare.”

A constitutional law professor from the University of Chicago Law School, Judge Harry Kalven, Jr.,
reputedly coined the term “heckler’s veto.”
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A prime example of a heckler’s veto involves that of demonstrators/rallyists, as the reacting party,
causing a speech, given by the acting party, to be terminated in order to preserve peace and order,
as well as protect the general welfare.

XXXIV

a) What is the strict scrutiny test or standard of judicial review?

ANSWER: The strict scrutiny test is a standard of judicial review for determining the quality and
the amount of governmental interest brought to justify the regulation of fundamental freedoms The
focus is on the presence of compelling, rather than substantial, governmental interest and on the
absence of less restrictive means for achieving that interest. It is used for laws dealing with freedom
of the mind or restricting the political process. (White Light Corporation v. City of Manila, G.R.
No. 122846, 20 January 2009)

b) What is the intermediate review test or standard of judicial review?

ANSWER: The intermediate review test is a standard of judicial review that is satisfied when it is
shown that a classification or legislation is substantially related to an important government
objective. The availability of less restrictive alternatives is considered. (White Light Corporation v.
City of Manila, supra)

c) What is the rational basis test or standard of judicial review?

ANSWER: The rational basis test, or deferential review, is satisfied when it is shown that the
legislative classification is rationally related to achieving some legitimate State interest. In the areas
of social and economic policy, a statutory classification that neither proceeds along suspect lines
nor infringes constitutional rights must be upheld against equal protection challenge if there is any
reasonably conceivable state of facts that could provide a rational basis for the classification.
(British-American Tobacco v. Camacho, G.R. No. 163583, 15 April 2009)

XXXV

What is the Stewardship Doctrine?

ANSWER: The Stewardship Doctrine states that private property is supposed to be held by the
individual only as a trustee for the people in general, who are its real owners. As a mere steward,
the individual must exercise his rights to the property not for his own exclusive and selfish benefit
but for the good of the entire community or nation (Mataas na Lupa Tenants Association v.
Dimayuga, G.R. No. 32049, 25 June 1984)

XXXVI

Distinguish between a federal, from a central form of government.

ANSWER: In a federal form of government, power is jointly shared between the state and federal
governments. In a federal government, the powers never rest with one national government.
However, there can be certain powers and authorities that remain totally with the federal
government like policies on national defense, budget, and foreign relations. The hierarchy of power
in federal governments start from the federal level and then cascades to the state level and finally to
the local level. The federal institutions may interfere in state matters in case there is a violation of
federal law or the federal constitution. The federal government comprises a system of government
where there is institutionalized division of authority between national (federal level) and sub-
national units (state level). An example of a federal form of government is the United States of
America.

In a central or unitary form of government, powers remained with the central government. The
central government has the authority to make all national decisions. An example of a central or
unitary form of government is the United Kingdom.

Decision-making is highly centralized in a unitary or central form of government, while a federal

form of government involves a devolution of power in which local governments, territories, or
constituent states or provinces can enjoys some powers regarding governing and decision making
in their respective regions.

In a federal government, there is a hierarchy of power from federal level to state and local levels. In
a central or unitary government, the powers and authorities are shared with the lower level
government when needed.

There are the uniform set of rules and regulations in the entire country under the central or unitary
form of government. In a federal government, there can be variations in rules and regulations at the
federal and state levels.

A federal form of government is a form of government that emphasizes the decentralization of

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power and authority. A central or unitary form of government where political power and authority
is centralized in the national government.

In the case of emergency where timely decisions are required, a central or unitary government is
more responsive as compared to a federal government that cannot interfere with the power of state
governments to address local emergencies.

XXXVII

Distinguish between a Presidential, from a Parliamentary form of government.

ANSWER: The major distinction between these two forms is that in a Presidential form of
government, the President, as chief executive, is directly voted upon by the people, and in a
Parliamentary form of government, the Prime Minister, as chief executive, is elected from the
legislature or Parliament.

In the Presidential form of government, legislation is carefully crafted by a legislature, which is a

separate but co-equal branch from the executive department. In that system of checks and balances,
the President is directly accountable to the people. In extreme cases, it may result in a gridlock of
power between the executive and legislative branches of government.

In the Parliamentary form of government, there is a fusion of the executive and legislative
departments. The Prime Minister and Cabinet Ministers who form the government are chosen from
Members of Parliament. If the Parliament disagrees on major policy issues with the Prime Minister,
they can cast a vote of no confidence and replace him. The Prime Minister and Cabinet Ministers
are accountable directly to Parliament.

The Presidential form of government would have more checks and balances. The fusion of the
executive and legislative departments in the Parliamentary form of government, on the other hand,
enables Parliament to enact laws more efficiently than in a Presidential form of government.