Vous êtes sur la page 1sur 57

CONSTITUTIONAL LAW REVIEW NOTES

Political Law: that branch of public law which deals with the organization and operations of the government organs of the State and defines the relations of the State with the inhabitants of its territory (Macariola vs Asuncion) Scope/Divisions of Political Law

Unwritten scattered, consists of rules which have not been integrated into a single, concrete form but are scattered in various sources

2. As to how to change Rigid Constitution is one that can be amended only by a formal and usually difficult process and follows a specific procedure Flexible Constitution does not follow a specific process and one that can be changed by ordinary legislation

1. Constitutional Law: the study of the


maintenance of the proper balance between authority as represented by the three inherent powers of the state and liberty as guaranteed by the Bill of Rights. Administrative Law: that branch of public law which fixes the organization of government, determines the competence of the administrative authorities who execute the law and indicates the individual remedies for the violation of his rights. Law on Municipal Corporations Law of Public Officers Election Laws

2.

3. As to who can change Conventional (enacted) enacted for a specific time , formally struck off at a definite time and place following conscious or deliberate effort taken by a constituent body or ruler Cumulative ( evolved) is the result of political evolution not inaugurated at any specific time but changing by accretion rather than by any systematic method.

3. 4. 5.

What is a constitution (nature)? - A body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised. - That written instrument enacted by the direct action of the people by which the fundamental powers of the government are established, limited and defined by which those powers are distributed among the several departments for the safe and useful exercise for the benefit of the body politic. Classification of a Constitution 1. As to form Written sources are found in one singlet instrument because reduced into writing , one whose precepts are embodied in one document or set of documents

Relevant dates of the three Constitutions of the Philippines

1. 1935 Constitution took effect May 14,


1935 when it was ratified in a plebiscite 2. 1973 Constitution took effect January 17, 1973 when Pres. Marcos issued Proclamation No. 1102 declaring the same has been ratified by the Citizens Assemblies and has thereby come into force and effect. 3. 1987 Constitution took effect February 2, 1987when it was ratified in a plebiscite, this is pursuant to Proclamtion No. 9

1 |Page

February 11, 1987 pursuant to EO. 50 it declared the Constitution validly ratified NOTE: Tthe basis of the effectivity of the Constitution is Sec.27 Art. XVII which provides .. Section 27. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions. Stages of Changing the Constitution (Art. XVII)

Lambino case : in a amendment proposed by the people, the people must sign the petition Occena vs Comelec the choice of the method of proposal whether made directly by Congress or through a Constitutional Convention is within the full discretion of the legislature Can the president propose amendment? Generally:NO under the 1987 Constitution president cannot propose amendment Exception : during the time of Marcos under the 1973 Constitution the president was able to propose of its amendment because he was exercising legislative power

a. PROPOSAL

formulation changes contemplated

of

the

Any amendment to, or revision of, this Constitution may be proposed by: The Congress, upon a vote of 3/4 of all its Members this is to be understood as of the Senate and of the of the House of Rep. 2. A constitutional convention may be called by Congress into existence by a vote of 2/3 of all its members or if such vote is not obtained by a majority vote of all its members with a question whether or not to call a Convention to be resolved by the people in a plebiscite. 3. People through the power of initiative by a petition of at least 12% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

1.

b. SUBMISSION of the proposed amendments or revision to the people c. RATIFICATION (Sec.4 Art. XVII) Any amendment to, or revision of shall be part of the Constitution and shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days nor later than 90 days after the approval of the proposal by Congress or the Constitutional Convention or after the certification by the COMELEC of the sufficiency of the petition for initiative in the case where proposal is by the people. Prov. of Cotabato vs Republic An agreement which would guarantee that Congress and the sovereign Filipino people will amend the legal framework (Constitution) for to allow the same would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an

Congress shall shall provide for the implementation of the exercise of this right

2 |Page

undue influence or interference with that process. The president simply has the power to recommend proposed amendments and revisions but such presidential power does not, however, extend to allowing her/him to change the Constitution Facts: This case involved the supposed signing of the MOA-Ancestral domains between the Gov of the Republic of the Philippines and MILF where in the said agreement the BJE Bangsamoro Judicial Entity was created. By this petition and several others such MOA was not materialized because of the many objections thereto. Among these, it is asserted that the MOA-AD contained provisions that would in effect amend the constitution as the BJE constitute a creation of another state within a state totally inconsistent with out Constitution. This case also involved the question of the Presidents power to enter into negotiations. Most importantly provision of the MOA-AD virtually guarantees that the "necessary changes to the legal framework" will be put in place upon the signing of the same tantamount to an absolute amendment or change of the Constitution specifically on the amendments and revision articles of the Constituition Ruling: The MOA-AD is inconsistent with the Constitution and laws as presently worded. It will be observed that the President has authority, as stated in her oath of office,178 only to preserve and defend the Constitution. Such presidential power does not, however, extend to allowing her to change the Constitution, but simply to recommend proposed amendments or revision. As long as she limits herself to recommending these changes and submits to the proper procedure for constitutional amendments and revision, her mere recommendation need not be construed as an unconstitutional act. The foregoing discussion focused on the President's authority to propose

constitutional amendments, since her authority to propose new legislation is not in controversy. It has been an accepted practice for Presidents in this jurisdiction to propose new legislation. One of the more prominent instances the practice is usually done is in the yearly State of the Nation Address of the President to Congress. Moreover, the annual general appropriations bill has always been based on the budget prepared by the President, which - for all intents and purposes - is a proposal for new legislation coming from the President.179 The "suspensive clause" in the MOAAD viewed in light of the abovediscussed standards Given the limited nature of the President's authority to propose constitutional amendments, she cannot guarantee to any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as recommendations either to Congress or the people, in whom constituent powers are vested. On amendments and revisions The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, respondents' almost consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion. The grave abuse lies not in the fact that they considered, as a solution to the Moro Problem, the creation of a state within a state, but in their brazen willingness to guarantee that Congress and the sovereign Filipino people would give their imprimatur to their solution. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can

3 |Page

ensure the outcome of the amendment process is through an undue influence or interference with that process. The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to the Moros for the sake of peace, for it can change the Constitution in any it wants, so long as the change is not inconsistent with what, in international law, is known as Jus Cogens.Respondents, however, may not preempt it in that decision. Tolentino vs Comelec Ruling: Submission NOT piece-meal for ratification

The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. (Archipelagic Doctrine).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. Republic Act No. 9522 (March 10, 2009) - Section 1. The baselines of the Philippines archipelago are hereby defined and described (redrawn) - Section 2. The baseline in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS): a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596; and b) Bajo de Masinloc, Scarborough Shoal. also known as

this is not allowed because the proposed change should be submitted at one time and not of piece-meal amendment in order for the people to be given ample basis for an intelligent decision. 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES PREAMBLE We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society, and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution. State : a community of persons more or les numerous occupying a definite portion of territory, independent of external control and possessing a government to which a great body of inhabitants render habitual obedience. Elements of the state 1. People 2. Territory 3. Government 4. Soverignty ARTICLE I NATIONAL TERRITORY

Section 3. This Act affirms that the Republic of the Philippines has dominion, sovereignty and jurisdiction over all portions of the national territory as defined in the Constitution and by provisions of applicable laws including, without limitation, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, as amended.

Straight Baseline Method- imaginary straight lines are drawn joining the outermost points of outermost islands of the archipelago, enclosing an area the ration of which should not be more than 9:1 (water to land) provided that the drawing baselines shall not depart to any appreciable extent from the general configuration of the archipelago. The waters within the baselines shall be considered internal waters

4 |Page

while breadth of the territorial sea shall then be measured from the baselines. Continental Shelf go beyond 24NM from the end of the territorial seas UN Convention on Law of the Sea (1982) provides: 1. Contiguous Zone of 12 miles 2. Exclusive Economic Zone of 200 miles Note : although the Contiguous Zone and most of the Exclusive Economic Zone may not technically part of the territory of the State, nonetheless the coastal State enjoys preferential rights over the marine resources found within these zones Other territories of the Philippines: 1935 Batanes (acquired by possession and occupation) 1973 other territories belonging to the Philippines by historic or legal right PD 1596 constituted the Kalayaan Island Group Kalayaan Group of Islands, Borromeo (historic and legal right, part of Regime of Islands) Spratley Islands justification of jurisdiction is by discovery and long occupation Where exactly is the Philippine 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 in the Traty of Washington of November 7, 1900 and the Treaty with Great Britain of January 2, 1930 - Foreign Embassies can exercise sovereignty because of International agreement by mere treaties etc (exercise sovereignty but not the acts) - What we have is only sovereignty as to territory thus ownership is not proprietary

Areas covered by the United States Military Bases are not foreign territories both in the political and geographical sense US military bases in the Philippines are part of Philippine territory over which the government exercised sovereign control Facts: petitioner William C. Reagan, at one time a civilian employee of an American corporation providing technical assistance to the United States Air Force in the Philippines. He would dispute the payment of the income tax assessed on him by respondent Commissioner of Internal Revenue on an amount realized by him on a sale of his automobile to a member of the United States Marine Corps, the transaction having taken place at the Clark Field Air Base at Pampanga. It is his contention, seriously and earnestly expressed, that in legal contemplation the sale was made outside Philippine territory and therefore beyond our jurisdictional power to tax. Issue: Is a foreign military base outside Philippines territory and therefore outside its jurisdiction on the power to tax?Ruling: NO, "the areas covered by the United States Military Bases are not foreign territories both in the political and geographical sense." The sale having taken place on what indisputably is Philippine territory, petitioner's liability for the income tax due as a result thereof was unavoidable. Nothing is better settled than that the Philippines being independent and sovereign, its authority may be exercised over its entire domain. There is no portion thereof that is beyond its power. Within its limits, its decrees are supreme, its commands paramount. Its laws govern therein, and everyone to whom it applies must submit to its terms. That is the extent of its jurisdiction, both territorial and personal. Necessarily, likewise, it has to be exclusive. If it were not thus, there is a diminution of its sovereignty. It is not precluded from allowing another power to participate in the exercise of jurisdictional right over certain portions of its territory. If it does so, it by no means follows that such areas become impressed with an alien character. They retain their status as

Reagan vs CIR The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. "All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source."

5 |Page

native soil. They are still subject to its authority. Its jurisdiction may be diminished, but it does not disappear. So it is with the bases under lease to the American armed forces by virtue of the military bases agreement of 1947. They are not and cannot be foreign territory. Schooner Exchange v. M'Faddon,8 an 1812 decision: "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction." After which came this paragraph: "All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source." ARTICLE IV CITIZENSHIP

Section 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law to have renounced it.(note that there must be a legal marriage thus if not legally married the child acquires the citizenship of the mother) Section 5. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. 1973 Constitution ARTICLE III CITIZENS Section 1. The following are citizens of the Philippines: 1. Those who are citizens of the Philippines at the time of the adoption of this Constitution. 2. Those whose fathers and mothers are citizens of the Philippines. 3. Those who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-five. 4. Those who are naturalized in accordance with law. Section 2. A female citizen of the Philippines who marries an alien retains her Philippine citizenship, unless by her act or omission she is deemed, under the law, to have renounced her citizenship. Section 3. Philippine citizenship may be lost or reacquired in the manner provided by law. Section 4. A natural-born citizen is one who is a citizen of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship. 1935 Constitution ARTICLE IV CITIZENSHIP

Section 1. The following are citizens of the Philippines: 1. Those who are citizens of the Philippines at the time of the adoption of this Constitution; 2. Those whose fathers or mothers are citizens of the Philippines; 3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine Citizenship upon reaching the age of majority (18); and (considered natural-born applied retoractively) 4. Those who are naturalized in the accordance with law. Section 2. Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens. Section 3. Philippine citizenship may be lost or reacquired in the manner provided by law.

Section 1. The following are citizens of the Philippines: 1. Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution. 2. Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution, had been elected to

6 |Page

public office in the Philippine Islands. 3. Those whose fathers are citizens of the Philippines. (fathers recognition is not important) 4. Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine citizenship. 5. Those who are naturalized in accordance with law. Section 2. Philippine citizenship may be lost or reacquired in the manner provided by law. Philippine Bill of 1902 for the first time it was declared who were citizens of the Philippines and it was Gen. Howard Taft the first to call Filipinos Citizenship - membership in a political community which is personal and more or less permanent in character. It denotes possession within that particular political community of full civil and political rights subject to special disqualifications such as minority. Nationality membership in any class of form of political community. Nationals may be citizens if members of a democratic community but nationality does not necessarily include the right or privilege of exercising civil or political rights. Citizens and Nationals are synonymous all citizens are nationals but not all nationals are citizens Who are citizens of the Philippines ( Sec.1 Art. IV of the 1987 Constitution) - Those Natural citizens mentioned in Sec. 1 Art.IV

employee who seeks to change citizenship or acquire the status of immigrant of another country during tenure shall be dealt with by law (Sec. Art. XI )

his an his 18,

Two Kinds of citizens 1. Natural-born 2. Naturalized (by operation of law) Modes of acquiring citizenship 1. By birth Jus sanguinis by blood (child follows the citizenship of parents) Jus soli by place of birth April 11, 1899 to July 1, 1902 there was an implied recognition of jus soli here in the Philippines, subjects of Spain and inhabitants were considered citizens of the Philippines 2. By naturalization legal act of adopting an alien and clothing him with the privilege of a native born citizens 3. By marriage not a mode of acquiring Philippine citizenship but a mode of acquiring a Foreign Citizenship Election of Philippine citizenship (Sec.1 par 3 Art IV) 1. Who : 1987 those born before Jan. 17, 1973 of Filipino mothers 1935 those born under the 1935 Consitution whose mothers were at least Philippine citizens at the time at least of their marriage to an alien 2. When : within a reasonable period of 3years after reaching the age majority 3. How: Sec.1 of CA 625 enacted june 7, 1941 election must be expressed in s statement sworn before an officer authorized to administer oaths and filed with the nearest civil registry and accompanied by an oath of allegiance to the Phil. Constitution.(note that prior to the enactment of CA 625 participation in an election and campaigning for candidates and similar acts have been recognized as sufficient to show ones preference for Philippine Citizenship Who are inhabitants of the Philippines (Tecson vs Comelec) 1. Native-born inhabitants (Indios)

Those Juridical person is a corporation established in the Philippines where 60% of its capital is owned by Filipino citizens Important as to determination of political rights

Who are required to owe allegiance? - Citizens of the Philippines - Public officers and employees owe the State and this Constitution allegiance at all times and any public officer or

7 |Page

2. Native who was an habitant of the


Peninsular Spain who decided to stay in the Philippines despite change of sovereignty as of April 11, 1899 (Penninsularies) 3. Inhabitants who obtained Spanish papers on or before April 11, 1899 When election of Philippine citizenship be made - The right could be exercised ordinarily within 3 years from the attainment of majority age of 18 years old. Other acts of election of Philippine citizenship 1. By election running for public office 2. By voting exercise of right to suffrage as a consequence of citizenship

Roa vs Collector of Customs Under this case it adopted the jus soli principle in declaring Roa as a citizen Facts: The question presented is whether a child born in the Philippine Island in July, 1889, of parents, one of whom (the father) was a Chinaman and the other a Filipina, who at the time of his birth were permanently domiciled and resided in the Philippine Islands and were not employed in any diplomatic or official capacity under the Emperor of China, becomes, at the time of his birth, a citizen of the Philippine Islands by virtue of law, and whether he can, on reaching his majority, elect to become a citizen of the country of his birth. Ruling: Was the appellant a citizen of the Philippine Islands on July 1, 1902? If so, the Act of Congress of that date did not denationalize him. At the time this country was ceded to the United States, Basilio Roa, father of the appellant, was, let us say, a subject of the Emperor of China, and the nationality of the appellant, let us further say, followed absolutely that of his father. Basilio Roa died in China in 1900. Tranquilino was then a minor and living with his mother in this country. His mother, before her marriage, was, as we have said, a Spanish subject. On the death of her husband she ipso facto reacquired the nationality of the country of her birth, as she was then living in that country and had never left it. She was then the natural guardian of Tranquilino. The question

now arises, did the nationality of the appellant follow that of his mother, admitting that before the death of his father he was a Chinese subject? If his nationality that of his mother, it must have been not by reason of the Spanish law, as there was none in force in this country at the time on the subject, but by means of analogous principles of citizenship in America. Upon the dissolution of a marriage between a female citizen of the United States and a foreigner, she ipso facto reacquires American citizenship, if at that time she is residing in the United States. There is no statutory declaration on the question as to whether or not her minor children would follow that of their widowed mother. If the children were born in the United States, they would be citizens of that country. If they were born in the country of which their father (and their mother during coverture) was a citizen, then they would be a citizens of that country until the death of their father. But after his death, they being minors and their nationality would, as a logical consequence, follow that of their mother, she having changed their domicile and nationality by placing them within the jurisdiction of the United States. But, of course, such minor children, on reaching their majority, could elect, under the principle that expatriation is an inherent right of all people, the nationality of the country of their birth. The nationality of the appellant having followed that of his mother, he was therefore a citizen of the Philippine Islands on July 1, 1902, and never having expatriated himself, he still remains a citizen of this country. 1awphil.net Moy Ya Lim Immigration Yao vs Commission of

Foreign women married to Filipino acquire Philippine citizenship by virtue of such marriage Facts: Lau Yuen Yeung was a Chinese national and applied for a temporary vistors visa ah she wished to visit the Philippines, she was then granted a one-month visitors visa in March 1961. Her visa was repeatedly extended until February 1962, but of January 1962 about a month before the expiration of her visa she contracted marriage with herein petitioner who is a Filipino citizen.

8 |Page

Issue: Whether or not Lau Yuen Yeungs marriage with herein petitioner makes her a citizen by virtue of such marriage Ruling: YES, under Commonwealth Act 473 an alien woman marrying a Filipino native-born or naturalized, becomes ipso facto a Filipina provided she is not disqualified to be a citizen of the Philippines under Sec 4 of the same law. Likewise, an alien woman married to an alien who subsequently naturalized here follows the Philippine citizenship of her husband the moment he takes his oath as Filipino citizen, provided that she does not suffer from any of the disqualification under said sec 4. Section 15 of CA No. 473 provides that any woman who is now or may hereafter be married to a citizen of the Philippines and who might herself be lawfully naturalized, shall be deemed a citizen of the Philippines.

In concluding that private respondent had been naturalized as a citizen of the United States of America, the petitioner merely relied on the fact that private respondent was issued alien certificate of registration and was given clearance and permit to re-enter the Philippines by the Commission on Immigration and Deportation. Private respondent, on the other hand, maintained that he is a Filipino citizen, alleging: that he is the legitimate child of Dr. Emilio D. Osmea, a Filipino and son of the late President Sergio Osmea, Sr.; that he is a holder of a valid and subsisting Philippine Passport No. 0855103 issued on March 25, 1987; that he has been continuously residing in the Philippines since birth and has not gone out of the country for more than six months; and that he has been a registered voter in the Philippines since 1965. Issue: Whether or not private respondent Osmena is a citizen of the Philippines Ruling: Yes, private respondent Osmena is a citizen of the Philppines, The factt that he holds an Alien Certificate of Registration does not make him not a citizen of the Philippines, there must be an express or at least an implied renunciation before Philippine citizenship is lost. Thus in the absence of such renunciation one is still considered a citizen of the Philippines. How Philippine citizenship is lost In the proceedings before the COMELEC, the petitioner failed to present direct proof that private respondent had lost his Filipino citizenship by any of the modes provided for under C.A. No. 63. Among others, these are: (1) by naturalization in a foreign country; (2) by express renunciation of citizenship; and (3) by subscribing to an oath of allegiance to support the Constitution or laws of a foreign country. From the evidence, it is clear that private respondent Osmea did not lose his Philippine citizenship by any of the three mentioned hereinabove or by any other mode of losing Philippine citizenship. In the instant case, private respondent vehemently denies having taken the oath of allegiance of the United States (p. 81, Rollo). He is a holder of a valid and subsisting Philippine passport and has continuously participated in the electoral process in this country since 1963 up to

this means that the alien woman can establish her claim to Philippine citizenship in administrative proceedings before the immigration authorities only and will not have to file a judicial action for this purpose. Unlike before, she is no longer required to prove as well that she possesses all the qualification for naturalization.

Aznar vs Comelec A Filipino who is a holder of another Alien Certificate of registration does not loss her/his Filipino citizenship, such can only be lost by either and express or implied act. An application for an alien certificate of registration is not tantamount to renunciation of his Philippine citizenship. Facts: Herein petitioner alleged that private respondent Lito Osmena isnot a Filipino citizen but an American citizen and a holder of an Alien Certificate of Registration. Thus by virtue of this fact petitioner alleged that he is not qualified to run and be elected as governor of Cebu Province. While it is the contention of the petitioner that private respondent Osmena is not a Filipino citizen the same was not supported by substantial and convincing evidence.

9 |Page

the present, both as a voter and as a candidate (pp. 107-108, Rollo). Thus, private respondent remains a Filipino and the loss of his Philippine citizenship cannot be presumed. Valles vs Comelec The fact of being born to foreign country which adopts jus soli does not tantamount to losing Philippine citizenship in the absence of an express renunciation of the latter The mere fact that private respondent Rosalind Ybasco Lopez was a holder of an Australian passport and had an alien certificate of registration are not acts constituting an effective renunciation of citizenship and do not militate against her claim of Filipino citizenship. For renunciation to effectively result in the loss of citizenship, the same must be express. Facts: Herein petitioner sought the disqulatification of herein private resp on the ground that he is not qualified to run and be elected as governor of Davao because he is not a citizen of the Philippines. Respondent was born in Australia of Filipino father and an Australian mother. Respondent acquired an Australian passport but has came to settle in the Philippines and had ran for several public office until now that petitioner questions her citizenship. Petitioner theorizes that under the aforestated facts and circumstances, the private respondent had renounced her Filipino citizenship. He contends that in her application for alien certificate of registration and immigrant certificate of residence, private respondent expressly declared under oath that she was a citizen or subject of Australia; and said declaration forfeited her Philippine citizenship, and operated to disqualify her to run for elective office. Issue: Whether or not respondent is a Filipino citizen Ruling: Yes respondent is a Filipino citizen The Philippine law on citizenship adheres to the principle of jus sanguinis. Thereunder, a child follows the nationality or citizenship of the parents regardless of the place of his/her birth, as opposed to the doctrine of jus soli which determines nationality or citizenship on the basis of place of birth.

Respondent father was a Filipino, under both organic acts (Phil Bill of 1902 and Jones Law), all inhabitants of the Philippines who were Spanish subjects on April 11, 1899 and resided therein including their children are deemed to be Philippine citizens. So also, the principle of jus sanguinis, which confers citizenship by virtue of blood relationship, was subsequently retained under the 1973 and 1987 Constitutions. Thus, the herein private respondent, Rosalind Ybasco Lopez, is a Filipino citizen, having been born to a Filipino father. The fact of her being born in Australia is not tantamount to her losing her Philippine citizenship. If Australia follows the principle of jus soli, then at most, private respondent can also claim Australian citizenship resulting to her possession of dual citizenship. Under Commonwealth Act No. 63, a Filipino citizen may lose his citizenship: (1) By naturalization country; (2) By express citizenship; in a foreign of

renunciation

(3) By subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining twenty-one years of age or more; (4) By accepting commission in the military, naval or air service of a foreign country; (5) By cancellation of the certificate of naturalization; (6) By having been declared by competent authority, a deserter of the Philippine armed forces in time of war, unless subsequently, a plenary pardon or amnesty has been granted: and (7) In case of a woman, upon her marriage, to a foreigner if, by virtue of the laws in force in her husbands country, she acquires his nationality. In order that citizenship may be lost by renunciation, such renunciation must be express. Petitioners contention that the application of private respondent for an alien certificate of registration, and

10 | P a g e

her Australian passport, is bereft of merit. This issue was put to rest in the case of Aznar vs. COMELECand in the more recent case of Mercado vs. Manzano and COMELEC. In the case of Aznar, the Court ruled that the mere fact that respondent Osmena was a holder of a certificate stating that he is an American did not mean that he is no longer a Filipino, and that an application for an alien certificate of registration was not tantamount to renunciation of his Philippine citizenship. And, in Mercado vs. Manzano and COMELEC, it was held that the fact that respondent Manzano was registered as an American citizen in the Bureau of Immigration and Deportation and was holding an American passport on April 22, 1997, only a year before he filed a certificate of candidacy for vice-mayor of Makati, were just assertions of his American nationality before the termination of his American citizenship. Thus, the mere fact that private respondent Rosalind Ybasco Lopez was a holder of an Australian passport and had an alien certificate of registration are not acts constituting an effective renunciation of citizenship and do not militate against her claim of Filipino citizenship. For renunciation to effectively result in the loss of citizenship, the same must be express. Thus, at the most, private respondent had dual citizenship - she was an Australian and a Filipino, as well. Also, under Commonwealth Act 63, the fact that a child of Filipino parent/s was born in another country has not been included as a ground for losing ones Philippine citizenship. Petitioner also maintains that even on the assumption that the private respondent had dual citizenship, still, she is disqualified to run for governor of Davao Oriental; citing Section 40 of Republic Act 7160 otherwise known as the Local Government Code of 1991, which states: SEC. 40. Disqualifications. The following persons are disqualified from running for any elective local position:

xxx....................................xxx....................... .............xxx (d) Those with dual citizenship; xxx....................................xxx....................... .............xxx Again, untenable. petitioners contention is

In the aforecited case of Mercado vs. Manzano, the Court clarified dual citizenship as used in the Local Government Code and reconciled the same with Article IV, Section 5 of the 1987 Constitution on dual allegiance. Recognizing situations in which a Filipino citizen may, without performing any act, and as an involuntary consequence of the conflicting laws of different countries, be also a citizen of another state, the Court explained that dual citizenship as a disqualification must refer to citizens with dual allegiance. The Court succinctly pronounced: xxx the phrase dual citizenship in R.A. No. 7160, xxx 40 (d) and in R.A. No. 7854, xxx 20 must be understood as referring to dual allegiance. Consequently, persons with mere dual citizenship do not fall under this disqualification. Thus, the fact that the private respondent had dual citizenship did not automatically disqualify her from running for a public office. Furthermore, it was ruled that for candidates with dual citizenship, it is enough that they elect Philippine citizenship upon the filing of their certificate of candidacy, to terminate their status as persons with dual citizenship. The filing of a certificate of candidacy sufficed to renounce foreign citizenship, effectively removing any disqualification as a dual citizen. This is so because in the certificate of candidacy, one declares that he/she is a Filipino citizen and that he/she will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto. Such declaration, which is under oath, operates as an effective renunciation of

11 | P a g e

foreign citizenship. Therefore, when the herein private respondent filed her certificate of candidacy in 1992, such fact alone terminated her Australian citizenship. On Res Judicata Petitioner maintains further that when citizenship is raised as an issue in judicial or administrative proceedings, the resolution or decision thereon is generally not considered res judicata in any subsequent proceeding challenging the same; citing the case of Moy Ya Lim Yao vs. Commissioner of Immigration. He insists that the same issue of citizenship may be threshed out anew. Petitioner is correct insofar as the general rule is concerned, i.e. the principle of res judicata generally does not apply in cases hinging on the issue of citizenship. However, in the case of Burca vs. Republic, an exception to this general rule was recognized. The Court ruled in that case that in order that the doctrine of res judicata may be applied in cases of citizenship, the following must be present: 1) a persons citizenship be raised as a material issue in a controversy where said person is a party; 2) the Solicitor General or his authorized representative took active part in the resolution thereof, and 3) the finding on citizenship is affirmed by this Court. Mercado vs Manzano It was ruled that for candidates with dual citizenship, it is enough that they elect Philippine citizenship upon the filing of their certificate of candidacy, to terminate their status as persons with dual citizenship. Holding an American passport are just assertions of his American nationality and thus does not constitute as an effective act of renunciation The filing of a certificate of candidacy sufficed to renounce foreign citizenship, effectively removing

any disqualification as a dual citizen, bcasue in the COc a candidate shall declare that he/she is a Filipino and that he/she will maintain allegiance to the Constitution of the Philippines. Ruling: On renunciation it was held that the fact that respondent Manzano was registered as an American citizen in the Bureau of Immigration and Deportation and was holding an American passport on April 22, 1997, only a year before he filed a certificate of candidacy for vice-mayor of Makati, were just assertions of his American nationality before the termination of his American citizenship. On dual citizenship under RA 7160 LGC means dual allegiance as to disqualification) the Court clarified dual citizenship as used in the Local Government Code and reconciled the same with Article IV, Section 5 of the 1987 Constitution on dual allegiance. Recognizing situations in which a Filipino citizen may, without performing any act, and as an involuntary consequence of the conflicting laws of different countries, be also a citizen of another state, the Court explained that dual citizenship as a disqualification must refer to citizens with dual allegiance. The Court succinctly pronounced: xxx the phrase dual citizenship in R.A. No. 7160, xxx 40 (d) and in R.A. No. 7854, xxx 20 must be understood as referring to dual allegiance. Consequently, persons with mere dual citizenship do not fall under this disqualification.

Thus, the fact that the private respondent had dual citizenship did not automatically disqualify her from running for a public office. Furthermore, it was ruled that for candidates with dual citizenship, it is enough that they elect Philippine citizenship upon the filing of their certificate of candidacy, to terminate their status as

12 | P a g e

persons with dual citizenship. The filing of a certificate of candidacy sufficed to renounce foreign citizenship, effectively removing any disqualification as a dual citizen. This is so because in the certificate of candidacy, one declares that he/she is a Filipino citizen and that he/she will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto. Such declaration, which is under oath, operates as an effective renunciation of foreign citizenship. Therefore, when the herein private respondent filed her certificate of candidacy in 1992, such fact alone terminated her Australian citizenship. Naturalization - is the legal act of adopting a foreigner and clothing him with privileges of a natural born citizens - even if it is already granted it does not have any finality and may still be revoked or cancelled anytime and res judicata does not apply as a general rule as held in the case of Moy Ya Lim Yao - CA 63 Naturalization 1936;CA 473 Revised Naturalization 1939, RA 9139 Administrative Naturalization (amnesty) Modes of Naturalization A. Direct - citizenship is acquired by: 1. Judicial under CA 473 in order to acquire citizenship all qualifications and none of the disqualification requirement must be met by the applicant ; RTC has the jurisdiction of such application; the application must first be submitted to the Solicitor General and it will conduct an investigation as to the applicant; this application is not demandable as a matter of right but it is considered as an act of grace from the state 2. Legislative 3. Administrative under RA 9139 grants citizenship subject to the qualifications set forth under this law 4. Collective change of nationality as a result of cession or subjugation 5. In some cases by adoption of orphan minors as nationals of the State where they are born. B. Derivative citizenship conferred on : 1. Wife of naturalized husband 2. Minor children of naturalized person

3. Alien upon marriage to a national Doctrine of indelible allegiance an individual may be compelled to retain his original nationality even if he has already renounced or forfeited it under the laws of the second State whose nationality he has acquired. Effects of Naturalization 1. Vests citizenship on the wife if she herself may be lawfully naturalized 2. Minor children born in the Philippines before the naturalization shall be considered citizens of the Philippines 3. Minor born outside the Philippines who was residing in the Philippines at the time of naturalization shall be considered a Filipino citizen 4. Issuance of certificate of naturalization and cancellation of alien certification Collateral Matters not allowed to attack issue on citizenship

In questioning citizenship of an opposing candidate in an election protest it should be brought in a direct action

LimKaichong vs Comelec It is the State thru the Solicitor General that a question as to the validity of the naturalization of aperson can be raised NOT any private person in a direct action. Commonwealth Act No. 63 of 1936 Salient Provisions Section 1. How citizenship may be lost. - A Filipino citizen may lose his citizenship in any of the following ways and/or events: (controlling grounds) (1) By naturalization in a foreign country; (2) By express renunciation of citizenship; (3) By subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining twenty-one years of age or more: Provided, however, That a Filipino may not divest himself of Philippine citizenship in any manner while the Republic of the Philippines is at war with any country. (4) By rendering services to, or accepting commission in, the armed forces of a foreign

13 | P a g e

country, and the taking of an oath of allegiance incident thereto, with the consent of the Republic of the Philippines, shall not divest a Filipino of his Philippine citizenship if either of the following circumstances is present: (a) The Republic of the Philippines has a defensive and/or offensive pact of alliance with the said foreign country; or (b) The said foreign country maintains armed forces on Philippine territory with the consent of the Republic of the Philippines: Provided, That the Filipino citizen concerned, at the time of rendering said service, or acceptance of said commission, and taking the oath of allegiance incident thereto states that he does so only in connection with his service to said foreign country: And, Provided, finally, That any Filipino citizen who is rendering service to, or is commissioned in, the armed forces of a foreign country under any of the circumstances mentioned in paragraph (a) or (b). shall not be permitted to participate nor vote in any election of the Republic of the Philippines during the period of his service suspended to, or commission in, the armed forces of said foreign country. Upon his discharge from the service of the said foreign country, he shall be automatically entitled to the full enjoyment of his civil and political rights as a Filipino citizen; (As amended by R. A. 106, R. A. 2639 and R. A. 3834). (5) By cancellation naturalization; of the certificates of

between the Philippines and the foreign country from which citizenship is acquired. Sec. 4. Repatriation shall be effected by merely taking the necessary oath of allegiance to the Commonwealth of the Philippines and registration in the proper civil registry. (controlling in relation to RA 8171 on Repatriation) COMMONWEALTH ACT NO. 473 of 1939 (Revised Naturalization Law: Acquisition of Philippine Citizenship) Salient Provisions Sec. 2. Qualifications. Subject to Section four of this Act, any person having the following qualifications may become a citizen of the Philippines by naturalization: 1. He must be not less than twenty-one years of age on the day of the hearing of the petition; 2. He must have resided in the Philippines for a continuous period of not less than ten years; 3. He must be of good moral character and believes in the principles underlying the Philippine Constitution, and must have conducted himself in a proper and irreproachable manner during the entire period of his residence in the Philippines in his relation with the constituted government as well as with the community in which he is living. 4. He must own real estate in the Philippines worth not less than five thousand pesos, Philippine currency, or must have some known lucrative trade, profession, or lawful occupation; 5. He must be able to speak and write English or Spanish and any one of the principal Philippine languages; and 6. He must have enrolled his minor children of school age, in any of the public schools or private schools recognized by the Office of Private Education of the Philippines, where the Philippine history, government and civics are taught or prescribed as part of the school curriculum, during the entire period of the residence in the Philippines required of him prior to the hearing of his petition for naturalization as Philippine citizen. Sec. 3. Special qualifications. The ten years of

(6) By having been declared by competent authority, a deserter of the Philippine armed forces in time of war, unless subsequently, a plenary pardon or amnesty has been granted; and (7) In the case of a woman, upon her marriage to a foreigner if, by virtue of the laws in force in her husband's country, she acquires his nationality. The provisions of this section notwithstanding, the acquisition of citizenship by a natural born Filipino citizen from one of the Iberian and any friendly democratic countries or from the United Kingdom shall not produce loss or forfeiture of his Philippine citizenship if the law Of that country grants the same privilege to its citizens and such had been agreed upon by treaty

14 | P a g e

continuous residence required under the second condition of the last preceding Sec. shall be understood as reduced to five years for any petitioner having any of the following qualifications: 1. Having honorably held office under the Government of the Philippines or under that of any of the provinces, cities, municipalities, or political subdivisions thereof; 2. Having established a new industry or introduced a useful invention in the Philippines; 3. Being married to a Filipino woman; 4. Having been engaged as a teacher in the Philippines in a public or recognized private school not established for the exclusive instruction of children of persons of a particular nationality or race, in any of the branches of education or industry for a period of not less than two years; 5. Having been born in the Philippines.

the United States and the Philippines are at war, during the period of such war; 8. Citizens or subjects of a foreign country other than the United States whose laws do not grant Filipinos the right to become naturalized citizens or subjects thereof. Sec. 5. Declaration of intention. One year prior to the filing of his petition for admission to Philippine citizenship, the applicant for Philippine citizenship shall file with the Bureau of Justice, a declaration under oath that it is bona fide his intention to become a citizen of the Philippines. Such declaration shall set forth name, age, occupation, personal description, place of birth, last foreign residence and allegiance, the date of arrival, the name of the vessel or aircraft, if any, in which he came to the Philippines, and the place of residence in the Philippines at the time of making the declaration. No declaration shall be valid until lawful entry for permanent residence has been established and a certificate showing the date, place, and manner of his arrival has been issued. The declarant must also state that he has enrolled his minor children, if any, in any of the public schools or private schools recognized by the Office of Private Education of the Philippines, where Philippine history, government, and civics are taught or prescribed as part of the school curriculum, during the entire period of the residence in the Philippines required of him prior to the hearing of his petition for naturalization as Philippine citizen. Each declarant must furnish two photographs of himself. Sec. 6. Persons exempt from requirement to make a declaration of intention. Persons born in the Philippines and have received their primary and secondary education in public schools or those recognized by the Government and not limited to any race or nationality, and those who have resided continuously in the Philippines for a period of thirty years or more before filing their application, may be naturalized without having to make a declaration of intention upon complying with the other requirements of this Act. To such requirements shall be added that which establishes that the applicant has given primary and secondary education to all his children in the public schools or in private schools recognized by the Government and not limited to any race or nationality. The same shall be understood to be applicable with respect to the widow and minor children of an alien who has declared his intention to become a citizen of the

Sec. 4. Who are disqualified. - The following cannot be naturalized as Philippine citizens: 1. Persons opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized governments; 2. Persons defending or teaching the necessity or propriety of violence, personal assault, or assassination for the success and predominance of their ideas; 3. Polygamists or believers in the practice of polygamy; 4. Persons convicted of crimes involving moral turpitude; 5. Persons suffering from mental alienation or incurable contagious diseases; 6. Persons who, during the period of their residence in the Philippines, have not mingled socially with the Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions, and ideals of the Filipinos; 7. Citizens or subjects of nations with whom

15 | P a g e

Philippines, and naturalized.

dies

before

he

is

actually

Sec. 7. Petition for citizenship. Any person desiring to acquire Philippine citizenship shall file with the competent court, a petition in triplicate, accompanied by two photographs of the petitioner, setting forth his name and surname; his present and former places of residence; his occupation; the place and date of his birth; whether single or married and the father of children, the name, age, birthplace and residence of the wife and of each of the children; the approximate date of his or her arrival in the Philippines, the name of the port of debarkation, and, if he remembers it, the name of the ship on which he came; a declaration that he has the qualifications required by this Act, specifying the same, and that he is not disqualified for naturalization under the provisions of this Act; that he has complied with the requirements of Sec. five of this Act; and that he will reside continuously in the Philippines from the date of the filing of the petition up to the time of his admission to Philippine citizenship. The petition must be signed by the applicant in his own handwriting and be supported by the affidavit of at least two credible persons, stating that they are citizens of the Philippines and personally know the petitioner to be a resident of the Philippines for the period of time required by this Act and a person of good repute and morally irreproachable, and that said petitioner has in their opinion all the qualifications necessary to become a citizen of the Philippines and is not in any way disqualified under the provisions of this Act. The petition shall also set forth the names and post-office addresses of such witnesses as the petitioner may desire to introduce at the hearing of the case. The certificate of arrival, and the declaration of intention must be made part of the petition. Sec. 8. Competent court.The Court of First Instance of the province (RTC) in which the petitioner has resided at least one year immediately preceding the filing of the petition shall have exclusive original jurisdiction to hear the petition. Sec. 15. Effect of the naturalization on wife and children.-Any woman who is now or may hereafter be married to a citizen of the Philippines, and who might herself be lawfully naturalized shall be deemed a citizen of the Philippines.

Minor children of persons naturalized under this law who have been born in the Philippines shall be considered citizens thereof. A foreign-born minor child, if dwelling in the Philippines at the time of the naturalization of the parent, shall automatically become a Philippine citizen, and a foreign-born minor child, who is not in the Philippines at the time the parent is naturalized, shall be deemed a Philippine citizen only during his minority, unless he begins to reside permanently in the Philippines when still a minor, in which case, he will continue to be a Philippine citizen even after becoming of age. A child born outside of the Philippines after the naturalization of his parent, shall be considered a Philippine citizen, unless within one year after reaching the age of majority, he fails to register himself as a Philippine citizen at the American Consulate of the country where he resides, and to take the necessary oath of allegiance. Sec. 16. Right of Widow and Children of Petitioners who have Died. - In case a petitioner should die before the final decision has been rendered, his widow and minor children may continue the proceedings. The decision rendered in the case shall, so far as the widow and minor children are concerned, produce the same legal effect as if it had been rendered during the life of the petitioner. Sec. 17. Renunciation of Title or Orders of Nobility. - In case the alien applying to be admitted to citizenship has borne any hereditary title, or has been of any of the orders of nobility in the Kingdom or state from which he came, he shall, in addition to the above requisites, make an express renunciation of his title or order of nobility in the court to which his application is made, and his renunciation shall be recorded in the court, unless with the express consent of the National Assembly. Sec. 18. Cancellation of Naturalization Certificate Issued. - Upon motion made in the proper proceedings by the Solicitor-General or his representative, or by the proper provincial fiscal, the competent judge may cancel the naturalization certificate issued and its registration in the Civil Register: 1. If it is shown that said naturalization certificate was obtained fraudulently or illegally.

16 | P a g e

2. If the person naturalized shall, within the five years next following the issuance of said naturalization certificate, return to his native country or to some foreign country and establish his permanent residence there: Provided, That the fact of the person naturalized remaining for more than one year in his native country or the country of his former nationality, or two years in any other foreign country, shall be considered as prima facie evidence of his intention of taking up his permanent residence in the same; 3. If the petition was made on an invalid declaration of intention; 4. If it is shown that the minor children of the person naturalized failed to graduate from a public or private high schools recognized by the Office of Private Education of the Philippines, where Philippine history, government and civics are taught as part of the school curriculum, through the fault of their parents either by neglecting to support them or by transferring hem to another school or schools. A certified copy of the decree cancelling the naturalization certificate shall be forwarded by the clerk of the Court to the Department of the Interior and the Bureau of Justice. 5. If it is shown that the naturalized citizen has allowed himself to be used as a dummy requiring Philippine citizenship as a requisite for the exercise, use or enjoyment of a right, franchise or privilege. Sec. 19. Penalties for violation of this Act.Any person who shall fraudulently make, falsify, forge, change, alter, or cause or aid any person to do the same, or who shall purposely aid and assist in falsely making, forging, falsifying, changing or altering a naturalization certificate for the purpose of making use thereof, or in order that the same may be used by another person or persons, and any person who shall purposely aid and assist another in obtaining a naturalization certificate in violation of the provisions of this Act, shall be punished by a fine of not more than five thousand pesos or by imprisonment for not more than five years, or both, and in the case that the person convicted is a naturalized citizen his certificate of naturalization and the registration of the same in the proper civil registry shall be ordered cancelled. Sec. 20. Prescription. - No person shall be prosecuted, charged, or punished for an offense

implying a violation of the provisions of this Act, unless the information or complaint is filed within five years from the detection or discovery of the commission of said offense. RA 9139 of 2001 Administrative Naturalization Aliens Salient Provisions Section 2. Declaration of Policy. - The State shall control and regulate the admission and integration of aliens into its territory and body politic including the grant of citizenship to aliens. Towards this end, aliens born and residing in the Philippines may be granted Philippine citizenship by administrative proceedings subject to certain requirements dictated by national security and interest. Section 3. Qualifications. - Subject to the provisions of the succeeding section, any person desiring to avail of the benefits of this Act must meet the following qualifications: (a) The applicant must be born in the Philippines and residing therein since birth; (b) The applicant must not be less than eighteen (18) years of age, at the time of filing of his/her petition; (c) The applicant must be of good moral character and believes in the underlying principles of the Constitution, and must have conducted himself/herself in a proper and irreproachable manner during his/her entire period of residence in the Philippines in his relation with the duly constituted government as well as with the community in which he/she is living; (d) The applicant must have received his/her primary and secondary education in any public school or private educational institution dully recognized by the Department of Education, Culture and Sports, where Philippine history, government and civics are taught and prescribed as part of the school curriculum and where enrollment is not limited to any race or nationality: Provided, That should he/she have minor children of school age, he/she must have enrolled them in similar schools; for Certain

17 | P a g e

(e) The applicant must have a known trade, business, profession or lawful occupation, from which he/she derives income sufficient for his/her support and if he/she is married and/or has dependents, also that of his/her family: Provided, however, That this shall not apply to applicants who are college degree holders but are unable to practice their profession because they are disqualified to do so by reason of their citizenship; (f) The applicant must be able to read, write and speak Filipino or any of the dialects of the Philippines; and (g) The applicant must have mingled with the Filipinos and evinced a sincere desire to learn and embrace the customs, traditions and ideals of the Filipino people. Section 4. Disqualifications, - The following are not qualified to be naturalized as Filipino citizens under this Act: (a) Those opposed to organized government or affiliated with any association of group of persons who uphold and teach doctrines opposing all organized governments; (b) Those defending or teaching the necessity of or propriety of violence, personal assault or assassination for the success or predominance of their ideas; (c) Polygamists or believers in the practice of polygamy; (d) Those convicted of crimes involving moral turpitude; (e) Those suffering from mental alienation or incurable contagious diseases; (f) Those who, during the period of their residence in the Philippines, have not mingled socially with Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions and ideals of the Filipinos; (g) Citizens or subjects with whom the Philippines is at war, during the period of such war; and

(h) Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to be naturalized citizens or subjects thereof. Section 5. Petition for Citizenship. - (1) Any person desiring to acquire Philippine citizenship under this Act shall file with the Special Committee on Naturalization created under Section 6 hereof, a petition of five (5) copies legibly typed and signed, thumbmarked and verified by him/her, with the latter's passportsized photograph attached to each copy of the petition, and setting forth the following: (a) The petitioner's name and surname, and any other name he/she has used or by which he/she is known; (b) The petitioner's present and former places of residence; (c) The petitioner's place and date of birth, the names and citizenship of his/her parents and their residences; (d) The petitioner's trade, business, profession or occupation, and if married, also that of his/her spouse; (e) Whether the petitioner is single or married or his/her marriage is annulled. If married, petitioner shall state the date and place of his/her marriage, and the name, date of birth, birthplace, citizenship and residence of his/her spouse; and if his marriage is annulled, the date of decree of annulment of marriage and the court which granted the same; (f) If the petitioner has children, the name, date and birthplace and residences of his/her children ; (g) A declaration that the petitioner possesses all the qualifications and none of the disqualifications under this Act; (h) A declaration that the petitioner shall never be a public charge; and (i) A declaration that it is the petitioner's true and honest intention to acquire Philippine citizenship and to renounce absolutely and forever any prince, potentate, State or sovereign,

18 | P a g e

and particularly the country applicant is a citizen or subject.

of

which

the

(2) The application shall be accompanied by: (a) Duplicate original or certified photocopies of petitioner's birth certificate; (b) Duplicate original or certified photocopies of petitioner's alien certificate of registration and native born certificate of residence; (c) Duplicate original or certified photocopies of petitioner's marriage certified, if married, or the death certificate of his spouse, if widowed, or the court decree annulling his marriage, if such was the fact; (d) Duplicate original or certified photocopies of birth certificates, alien certificate of registration or native born certificate of residence if any, of petitioner's minor children, wherever applicable; (e) Affidavit of financial capacity by the petitioner, and sworn statements on the good moral character of the petitioner by at least two (2) Filipino citizens of good reputation in his/her place of residence stating that they have personally known the petitioner for at least a period of ten (10) years and that said petitioner has in their own opinion all the qualifications necessary to become a citizen of the Philippines and is not in any way disqualified under the provisions of this Act; (f) A medical certificate that petitioner is not a user of prohibited drugs or otherwise a drug dependent and that he/she is not afflicted with acquired immune deficiency syndrome (AIDS); (g) School diploma and transcript of records of the petitioner in the schools he attended in the Philippines. Should the petitioner have minor children, a certification that his children are enrolled in a school where Philippine history, government and civics are taught and are part of the curriculum; and (h) If gainfully employed, the income tax return for the past three (3) years. Section 11. Status of Alien Wife and Minor Children. - After the approval of the petition for administrative naturalization in cancellation of

applicant's alien certificate of registration, applicant's alien lawful wife and minor children may file a petition for cancellation of their alien certificates of registration with the Committee subject to the payment of the filing fee of Twenty thousand pesos (P20,000.00) and naturalization fee of Forty thousand pesos (P40,000.00) payable as follows: Twenty thousand pesos (P20,000.00) upon the approval of the petition and Twenty thousand pesos (P20,000.00) upon the taking of the oath of allegiance to the Republic of the Philippines. Section 12. Status of Alien Husband and Minor Children. - If the applicant is a married woman, the approval of her petition for administrative naturalization will not benefit her alien husband but her minor children may file a petition for cancellation of their alien certificates of registration with the BI subject to the requirements of existing laws. Section 13. Cancellation of the Certificate of Naturalization. - The Special Committee may cancel certificates of naturalization issued under this Act in the following cases: (a) If it finds that the naturalized person or his duly authorized representative made any false statement or misrepresentation or committed any violation of law, rules and regulations in connection with the petition for naturalization, or if he otherwise obtains Philippine citizenship fraudulently or illegally, the certificate of naturalization shall be cancelled; (b) If the naturalized person or his wife, or any or his minor children who acquire Filipino citizenship by virtue of his naturalization shall, within five (5) years next following the grant of Philippine citizenship, establish permanent residence in a foreign country, that individual's certificate of naturalization or acquired citizenship shall be cancelled or revoked: Provided, That the fact of such person's remaining for more than one (1) year in his country of origin, or two (2) years in any foreign country, shall be considered prima facie evidence of intent to permanently reside therein; (c) If the naturalized person or his wife or child with acquired citizenship allows himself or herself to be used as a dummy in violation of any constitutional or legal provision requiring Philippine citizenship as a condition for the

19 | P a g e

exercise, use or enjoyment of a right, franchise or privilege, the certificate of naturalization or acquired citizenship shall be cancelled or revoked; and (d) If the naturalized person or his wife or child with acquired citizenship commits any act inimical to national security, the certificate of naturalization or acquired citizenship shall be cancelled or revoked. In case the naturalized person holds any hereditary title, or belong to any order of nobility, he shall make an express renunciation of his title or membership in this order of nobility before the Special Committee or its duly authorized representative, and such renunciation shall be included in the records of his application for citizenship. RA 9225 Retention and Reacquisition

Section 3. Retention of Philippine Citizenship - Any provision of law to the contrary notwithstanding, natural-born citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic: "I _____________________, solemny swear (or affrim) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion." Natural born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath. Section 4. Derivative Citizenship - The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizenship of the Philippines. Section 5. Civil and Political Rights and Liabilities - Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (1) Those intending to exercise their right of surffrage must Meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws; (2) Those seeking elective public office in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn

Salient Provisions NOTE: Under this law dual citizens are allowed to exercise right to vote and be elected for public office subject to the conditions set forth under this law. However, it is important to distinguish dual citizenship vis--vis dual allegiance because this law provides for different requirements respectively as to the exercise of political rights to vote and be elected. Dual Citizenship by mere filing of Certificate of Candidacy or by exercising right to vote are deemed to have renounced the their other citizenship, here the possession of any other foreign citizenship are just mere assertions of that other foreign citizenship. Dual Allegiance in order to be considered to have effectively renounced the other citizenship and in order to be qualified to run for any public office, there must at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. Note however that what the LGC RA 7610 prohibits as a disqualification when it made mention of dual citizens are those with dual allegiance and not mere dual citizens

20 | P a g e

renunciation of any and all foreign citizenship before any public officer authorized to administer an oath; (3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath; (4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and (5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or (b) are in active service as commissioned or noncommissioned officers in the armed forces of the country which they are naturalized citizens. Benjamin Dacanay profession) Case (exercise of

Exception: when he re-acquires his Filipino citizenship pursuant to RA 9225 and comply the necessary conditions therein. Therefore, a Filipino lawyer who becomes a citizen of another country is deemed never to have lost his Philippine citizenship if he reacquires it in accordance with RA 9225. Although he is also deemed never to have terminated his membership in the Philippine bar, no automatic right to resume law practice accrues. Under RA 9225, if a person intends to practice the legal profession in the Philippines and he reacquires his Filipino citizenship pursuant to its provisions "(he) shall apply with the proper authority for a license or permit to engage in such practice."18 Stated otherwise, before a lawyer who reacquires Filipino citizenship pursuant to RA 9225 can resume his law practice, he must first secure from this Court the authority to do so, conditioned on: (a) the updating and payment in full of the annual membership dues in the IBP; (b) the payment of professional tax; (c) the completion of at least 36 credit hours of mandatory continuing legal education; this is specially significant to refresh the applicant/petitioners knowledge of Philippine laws and update him of legal developments and (d) the retaking of the lawyers oath which will not only remind him of his duties and responsibilities as a lawyer and as an officer of the Court, but also renew his pledge to maintain allegiance to the Republic of the Philippines. Compliance with these conditions will restore his good standing as a member of the Philippine bar.

As a General Rule a Filipino who lost his citizenship cannot practice law in the Philippines Exception: when he re-acquires his Filipino citizenship pursuant to RA 9225 and comply the necessary conditions therein. Facts: Benjamin Dacanay is a lawyer here in the Philippines. But subsequently became a Canadian citizen when he had to treat his ailment. Few years thereafter, he re-acquired his Philippine citizenshio pursuant to RA9225 and took his oath of allegiance as a Filipino. He now intend to resume his law practice here in the Philippines. Issue: May a lawyer who has lost his Filipino citizenship still practice law in the Philippines? Ruling: As a General Rule a Filipino who lost his citizenship cannot practice law in the Philippines

AASJS v. Datumanong. Ruling : RA 9225 does not recognize dual allegiance but dual citizenship, such that when a persom becomes a naturalized citizen of another country, in order for him to qualify to run for an elective office he needs to take an oath of

21 | P a g e

allegiance NOT mere filing of COC. However, this ruling has been related amended in subsequent Sc rulings that pursuant to RA 9225 for a former Filipino who become a naturalized citizen of another country to a qualify to run for an elective office he must comply with the twin requirement of 1)taking an oath of allegiance and executing an sworn affidavit renouncing any and all foreign citizenship before any public officer authorized to administer an oath" aside from the oath of allegiance prescribed in Section 3 of R.A. No. 9225 RA 8171 - Providing for the repatriation of Filipino Women who have lost their Philippine citizenship by marriage to aliens and of natural born citizens Salient Provisions Section 1. Filipino women who have lost their Philippine citizenship by marriage to aliens and natural-born Filipinos who have lost their Philippine citizenship, including their minor children, on account of political or economic necessity, may reacquire Philippine citizenship through repatriation in the manner provided in Section 4 of Commonwealth Act No. 63, as amended (Sec. 4, CA 63- Repatriation shall be effected by merely taking the necessary oath of allegiance to the Commonwealth of the Philippines and registration in the proper civil registry.): Provided, That the applicant is not a: (1) Person opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing organized government; (2) Person defending or teaching the necessity or propriety of violence, personal assault, or associate on for the predominance of their ideas; (3) Person convicted of crimes involving moral turpitude; or (4) Person suffering from mental alienation or incurable contagious diseases. Section 2. Repatriation shall be effected by taking the necessary oath of allegiance to the Republic of the Philippines and registration in the proper civil registry and in the Bureau or

Immigration. The Bureau of Immigration shall thereupon cancel the pertinent alien certificate of registration and issue the certificate of identification as Filipino citizen to the repatriated citizen. Repatriation is the recovery of original citizenship, that is if what is lost was a naturalized citizenship, then that is what will be reacquired. If what was lost was natural born citizenship then that will be reacquired. Former Natural Born may avail of repatriation under RA 8171 and naturalization under RA 9225 in order to reacquire Philippine citizenship Former Naturalized may only avail of naturalization under RA 9225 to reacquire Philippine citizenship Repatriation applied to the ff: 1. Women married to a foreigner before Jan.17, 1973 2. Served the armed forces of a foreign country 3. Lost Philippine citizenship by reason of political or economic necessity (eg. During the Martial Law in order to escape from the dictatorship of Marcos) Cordora vs Comelec For candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. Dual citizenship is involuntary and arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. Dual allegiance, is brought about by individuals active participation in naturalization process. the the

Facts: Herein petitioner Cordora filed an election protest against Tambunting. He allged that Tambunting is not qualified to run because he is a naturalized American citizen.

22 | P a g e

Tambunting on the other hand claimed that he has a dual citizenship by virtue of the differing citizenship of his parents, his mother a Filipina and his father an Amercan citizens. Tambunting was petitioned by his father thru INS Form I-130 (Petition for Relative) as a result US government conferred upon him American citizenship. Issue: Whether or not Tambunting was a dual citizen or was his US citizenship acquired thru naturalization. Ruling: Tambunting possesses dual citizenship. Because of the circumstances of his birth, it was no longer necessary for Tambunting to undergo the naturalization process to acquire American citizenship. The process involved in INS Form I130 only served to confirm the American citizenship which Tambunting acquired at birth. Clearly, Tambunting possessed dual citizenship prior to the filing of his certificate of candidacy before the 2001 elections. The fact that Tambunting had dual citizenship did not disqualify him from running for public office.7 Requirements for dual citizens from birth who desire to run for public office We deem it necessary to reiterate our previous ruling in Mercado v. Manzano, wherein we ruled that dual citizenship is not a ground for disqualification from running for any elective local position. To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship:

(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers country such children are citizens of that country; (3) Those who marry aliens if by the laws of the latters country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are clearly possible given the constitutional provisions on citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individuals volition. Hence, the phrase "dual citizenship" in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as referring to "dual allegiance." Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. Jacot vs Comelec Facts: This case inlolves a former natural-born Filipino who became naturalized citizens of another country and thereafter seek to ran for an elective office. What is the requirement pursuant to RA 9225. Ruling: Pursuan to RA 9225 in order for a former natural-born who became a naturalized citizen of another country to qualify to run for an elective office here in the Philippines. The following twin requirement must be met. 1. swearing to an Oath of Allegiance and

23 | P a g e

executing a sworn renunciation Renunciation of Foreign Citizenship By complying the above twin requirement such person is deemed to have repudiated his other citizenship and thus qualified to run for an elective office. Section 5(3) of R.A. No. 9225 states that naturalized citizens who reacquire Filipino citizenship and desire to run for elective public office in the Philippines shall "meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of filing the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath" aside from the oath of allegiance prescribed in Section 3 of R.A. No. 9225 Detailed case digest of Jacot vs Comelec Facts: Herein in petitioner was a natural born citizen of the Philippines, who became a naturalized citizen of the US on 13 December 1989. Thereafter, he reacquired his Philippine citizenship under Republic Act No. 9225, took his Oath of Allegiance to the Republic of the Philippines before Vice Consul of Philippine Consulate General (PCG) of Los Angeles, California. Six months after he filed a Certificate of Candidacy for the Position of Vice-Mayor of the Municipality of Catarman, Camiguin. Soon after, respondent Rogen T. Dal filed a Petition for Disqualification before the COMELEC arguing that the latter failed to renounce his US citizenship, as required under Section 5(2) of Republic Act No. 9225. Alleging specifically that petitioner failed to make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. COMELEC declared petitioner disqualified to run for the position of Vice-Mayor. The subsequent motion for reconsideration was also dismissed by Comelec en banc. Petitioner reiterated his position that his Oath of Allegiance to the Republic of the Philippines before the Los Angeles PCG and his oath in his Certificate of Candidacy sufficed as an effective renunciation of his US citizenship.

2.

Issue : Whether petitioner is disqualified from running as a candidate in the 14 May 2007 local elections for his failure to make a personal and sworn renunciation of his US citizenship. Ruling: Yes, petitioner should indeed be disqualified. His oath of allegiance to the Republic of the Philippines made before the Los Angeles PCG and his Certificate of Candidacy do not substantially comply with the requirement of a personal and sworn renunciation of foreign citizenship because these are distinct requirements to be complied with for different purposes. Section 3 of Republic Act No. 9225 requires that natural-born citizens of the Philippines, who are already naturalized citizens of a foreign country, must take the following oath of allegiance to the Republic of the Philippines to reacquire or retain their Philippine citizenship. Also, under Section 5(2) of Republic Act No. 9225, The law categorically requires persons seeking elective public office, who either retained their Philippine citizenship or those who reacquired it, to make a personal and sworn renunciation of any and all foreign citizenship before a public officer authorized to administer an oath simultaneous with or before the filing of the certificate of candidacy. Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been naturalized as citizens of a foreign country, but who reacquired or retained their Philippine citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No. 9225, and (2) for those seeking elective public offices in the Philippines, to additionally execute a personal and sworn renunciation of any and all foreign citizenship before an authorized public officer prior or simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections. By the same token, the oath of allegiance contained in the Certificate of Candidacy, which is substantially similar to the one contained in Section 3 of Republic Act No. 9225, does not constitute the personal and sworn renunciation sought under Section 5(2) of Republic Act No. 9225.

24 | P a g e

Futhermore, the cases of Valles and Mercado are not applicable in this case as in those cases it concerned candidates with dual citizenships. The case of Lopez v. Commission on Elections is the more fitting precedent for this case since they both share the same factual milieu. In that case Lopez was also disqualified because he failed to make a personal and sworn renunciation of his foreign citizenship. Thus, the instant appeal is DISMISSED. Revocation it has the following effect on the petition for revocation of citizenship when the source of citizenship dies: 1. If the ground for the revocation is FRAUD the petition is rendered moot 2. If the ground is violation of the conditions and qualifications, the fault of the person whose citizenship is sought to be revoked will not prejudice the citizenship of his children Burca vs Republic pp 214 bernas

such rules as the Commission on Elections may promulgate to protect the secrecy of the ballot. NOTE : Right to Suffrage is a privilege , as to issue on residency requirement it is synonymous to domicile

Makalintal vs Comelec (see Nachura pp 493) Facts: Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal, a member of the Philippine Bar, seeking a declaration that certain provisions of Republic Act No. 9189 (The Overseas Absentee Voting Act of 2003)1 suffer from constitutional infirmity. Claiming that he has actual and material legal interest in the subject matter of this case in seeing to it that public funds are properly and lawfully used and appropriated, petitioner filed the instant petition as a taxpayer and as a lawyer. The Court upholds the right of petitioner to file the present petition. Issues: (1)Whether or not Sec 5(d) of RA 9189 violate the residency requirements of a voter as provided for uner Sec 1, Art V of the 1987 Constitution (2)Whether or not Sec 18.5 of RA 9189 empowering the COMELEC to proclaim the winning candidates including President and Vice President violate Sec 4, Art VII of the Constitution wherein the winning candidates for President and the Vice-President should be proclaimed by Congress. (3)Whether or not Sec 19 and 25 of the same law creating the Joint Congressional Oversight Committee which has the power to review, revise and amend rules and regulations of the COMELEC violate Sec 1, Art IX-A of the Constitution. Ruling : On the Constitutionality of Sec 5(d) of RA 9189 Sec 1, Art V of the Constution provides for the following : SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at

Important laws on Citizenship CA 63 Naturalization 1936 CA 473 Revised Naturalization 1939 RA 9139 Administrative Naturalization (amnesty) RA 8171 Repatriation RA 9225 Retention and Reacquisition of Philippine Citizenship ARTICLE V SUFFRAGE

Section 1. Suffrage may be exercised by all citizens of the Philippines, not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote, for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. Section 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. The Congress shall also design a procedure for the disabled and the illiterates to vote without the assistance of other persons. Until then, they shall be allowed to vote under existing laws and

25 | P a g e

least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. Sec 2, Art V, on the other hand mandates to Congress the promulgation of a system of voting of qualified Filipinos abroad, to wit : SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. However, Section 5(d) of RA 9189 provides : Sec. 5. Disqualifications. The following shall be disqualified from voting under this Act: d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. This provision is claimed to be unconstitutional because it violates the one-year residency requirement as provided for under Sec 1, Art V of the Constitution. The Supreme Court, reconciles these two provisions on two grounds - first, that this provision was intended by the Constitutional Convention in the drafting of the 1987 Constitution as provided for in the transcript of their discussions and second, that the concept of residence in election laws has always been equated to domicile. Sec 2, Art V of the 1987 Constitution mentioning a system of absentee voting for qualified Filipinos abroad was intended by the Constitutional Commission in order to provide a mandate to the legislature that there could be an inconsistency on the residence rule to Sec 1 of the same article in the Constitution. Sec 2, Art V came into being to remove any doubt to the

inapplicability of the residence requirement and in order to avoid any problems that could impede the implementation of statute that would enfranchise the largest number of qualified Filipinos not in the Philippines. Furthermore, residence is synonymous to domicile in election laws. Domicile includes the twin element of residing or physical presence in a fixed place and animus manendi, or the intention of returning there permanently. A citizen may leave the place of birth to look for greener pastures, to study in other places, to practice his vocation or engage in business. He may have more than one residence but he can only have one domicile. The Supreme Court upheld the constitutionality of Sec 5(d).

On the Constitutionality of Sec 18.5 of RA 9189 Sec 18.5 of RA 9189 empowers the COMELEC to order the proclamation of winning candidates despite the fact that elections in other countries have not yet taken place. However, Sec 4, Art VII of the Constitution provides that the election returns of the President and Vice-President shall be transmitted to Congress who shall canvass the votes and proclaim the winning candidates. The Supreme Court ruled that indeed such questioned provision in the statute is repugnant of the provision in the Constitution. Such provision would allow COMELEC to usurp a power that constitutionally belongs to Congress. The canvassing of the votes and proclamation of the winning candidates for President and Vice President for the entire nation must remain in the hands of Congress. Supreme Court upheld the constitutionality of Sec 18.5 except that which grants COMELEC the power to canvass votes and proclaim the winning candidates for President and Vice President. On the Constitutionality of Sec 25 of RA 9189 Sec 19 and 25 of RA 9189 provides for the creation of Joint Congressional Oversight Committee with the power to review, revise, amend and approve the Implementing Rules and Regulations promulgated by COMELEC. Clearly

26 | P a g e

this intrudes into the independence of the COMELEC expressly granted to it under Sec 1, Art IX-A of the 1987 Constitution. The COMELEC is not under the control of either the executive or the legislative departments of government. If any, it is the court that has the power to review its rules via the petition of any interest party, including the legislators. Therefore, the Supreme Court declared unconstitutional certain provisions that refer to a Joint Congressional Oversight Committee namely certain portions Sec 17.1, Sec 19 and Sec 25 of RA 9189.

Ruling: Imelda did not lose her domicile of origin. Domicile of origin is not easily lost. To successfully effect a change of domicile, one must demonstrate: 37 1. An actual removal or an actual change of domicile; 2. A bona fide intention of abandoning the former place of residence and establishing a new one; and 3. Acts purpose. which correspond with the

Marcos vs Comelec Facts: Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of Representative of the First District of Leyte. She indicated in her COC that resided in the constituency she sought to be elected for seven months. Thus, private respondent Cirilo Roy Montejo, the incumbent Representative of the First District of Leyte and a candidate for the same position, filed a "Petition for Cancellation and Disqualification" 5 with the Commission on Elections alleging that petitioner did not meet the constitutional requirement for residency which under the Constitution requires one year residency for candidates for the House of Representatives. In her answer, herein petitioner asserted that that her domicile is Tacloban City, a component of the First District, to which she always intended to return whenever absent and which she has never abandoned. That there was only an honest mistake on her part when she wrote in her COC seven moths (residency) while in fact she intended it to be since childhood. Not convinced, COMELEC granted the petition for Disqualification, holding that Imelda is deemed to have abandoned Tacloban City as her place of domicile when she lived and even voted in Ilocos and Manila. Issue: Whether or not herein petitioner (Imelda) abandoned her domicile of origin and as consequence thereof is she qualified to run as representative of the First District of Leyte

In the absence of clear and positive proof based on these criteria, the residence of origin should be deemed to continue. The evidence adduced by private respondent plainly lacks the degree of persuasiveness required to convince this court that an abandonment of domicile of origin in favor of a domicile of choice indeed occurred. To effect an abandonment requires the voluntary act of relinquishing petitioner's former domicile with an intent to supplant the former domicile with one of her own choosing (domicilium voluntarium). In Ong vs. Republic 20 this court took the concept of domicile to mean an individual's "permanent home", "a place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent." 21 Based on the foregoing, domicile includes the twin elements of "the fact of residing or physical presence in a fixed place" and animus manendi, or the intention of returning there permanently. Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical presence of a person in a given area, community or country. The essential distinction between residence and domicile in law is that residence involves the intent to leave when the purpose for which the resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or health. If a person's intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is established it is residence. For political purposes the concepts of residence and domicile are dictated by the peculiar criteria

27 | P a g e

of political laws. As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously with domicile. In Faypon vs. Quirino, court held that the absence from residence to pursue studies or practice a profession or registration as a voter other than in the place where one is elected does not constitute loss of residence. 28 So settled is the concept (of domicile) in our election law that in these and other election law cases, this Court has stated that the mere absence of an individual from his permanent residence without the intention to abandon it does not result in a loss or change of domicile Therefore, petitioner possesses the necessary residence qualifications to run for a seat in the House of Representatives in the First District of Leyte. Aquino vs Comelec Facts: Herein petitioner filed his Certifificate of Candidacy for the position of Representative for the new Second Legislative District of Makati City. In his COC it was indicated that he resided Makati for 10 months. Thereafter, Move Makati, a duly registered political party, and Mateo Bedon, Chairman of the LAKAS-NUCD-UMDP of Barangay Cembo filed a petition to disqualify him on the ground that he lacked the residence qualification as a candidate for Congressman. They contend that the Constitution requires for a period not less than one year as residence requirement. As a result, herein petitioner filed another COC this time he indicated that he resided in Makati City for one (1) year and thirteen (13) days evidenced by his lease agreement of a condominium unit in Makati as proof of his residency claim. The Second Division of COMELEC favored herein petitioner an declared him eligible to run as Congressman. Move Makati then filed a motion for reconsideration with the COMELEC en banc. Meanwhile, elections were held and herein petitioner garnered the highest number of votes. However, the COMELEC thereafter him ineligible and thus disqualified as a candidate for the Office

of Representative, for lack of the constitutional qualification of residence. Hence, this appeal. Issue: Whether or not herein petitioner (Aquino) failed to meet the constitutional residency requirement thus, a valid ground for his disqualification. Ruling: YES, herein petitioner failed to meet the constitutional residency requirement in the constituency he sought to be elected. The facts of the case provides that petitioners COC in the previous 1992 election provides that he was born in Concepcion, Tarlac and a resident therein for 52 years. This fact clearly showed that his domicile of origin is Concepcion, Tarlac. Relatively, as supported by jurisprudence and by the deliberations of the Constitutional Commission it is settled that "residence" has always been understood as synonymous with "domicile" and that its original concept is that it should be by domicile and not physical and actual residence. Clearly, the place "where a party actually or constructively has his permanent home," where he, no matter where he may be found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers when it speaks of residence for the purposes of election law. In the case at bar, petitioner claimed to have acquired Makati City as his domicile by choice but failed to provide proof thereof. While the lease contract he presented maybe indicative of his intention to reside such does not engender the kind of permanency required to prove abandonment of one's original domicile especially since, by its terms, it is only for a period of two (2) years. Domicile of origin is not easily lost. To successfully effect a change of domicile, petitioner must prove an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one and definite acts which correspond with the purpose. In the absence of clear and positive proof, the domicile of origin should be deemed to continue. Moreover, the ineligibility of Aquino on the other hand would not entitle his contender with the

28 | P a g e

second highest number of votes to assume the office of representative of Makati. The second placer is just that, a second placer. He lost the elections. Settled is the rule that the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office, for to do so, would be to defeat the will of the electorate. Petition is dismissed. BP 881 Registration of Voters

soldiers0 may vote in the nearest palce of voting 2. Outside the Philippines (abroad) this caters to OFW and those with dual citizenship provided they comply with all the necessary conditions as to their intention to resume actual residency in the Philippine not later than 3 years. Sec. 2. Declaration of Policy. It is the prime duty of the State to provide a system of honest and orderly overseas absentee voting that upholds the secrecy and sanctity of the ballot. Towards this end, the State ensures equal opportunity to all qualified citizens of the Philippines abroad in the exercise of this fundamental right. Sec. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vicepresident, senators and party-list representatives. Sec. 5. Disqualifications. The following shall be disqualified from voting under this Act: 1. Those who have lost their Filipino citizenship in accordance with Philippine laws; 2. Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country; 3. Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than one (1) year, including those who have committed and been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, such disability not having been removed by plenary pardon or amnesty; Provided, however, That any person disqualified to vote under this subsection shall automatically acquire the right to vote upon expiration of five (5) years after service of sentence; Provided, further, That the Commission may take cognizance of final judgments issued by foreign courts or tribunals only on the basis of reciprocity and subject to the formalities and processes prescribed by

Salient Provisions Sec. 4 It shall be the duty of every citizen to register and cast his vote Sec. 115 In order that a qualified elector may vote in any election, plebiscite or referendum, he must be registered in the Permanent List of voters for the city or municipality in which he resided Sec. 18 Disqualifications (cannot register to vote) 1. Any person sentenced by final judgment to suffer imprisonment for not less than one year (unless granted a plenary pardon or an amnesty) but right is reacquired upon the expiration of 5 years after service of sentence. 2. Any person adjudged by final judgment of having committed any crime involving disloyalty to the government or any crime against national security (unless restored to full civil and political rights in accordance with law) but right is reacquired upon the expiration of 5 years after the service of sentence. 3. Insane or incompetent persons as declared by competent authority 4. Violations of COMELEC Rules and Election Laws RA 9189 Absentee Voting

Salient Provisions Two Concepts: 1. In the Philippines under this law those assigned to other places in pursuit of profession or for any other legitimate and legal calling NOT in the place of their registration as a voter (eg. Teacher,

29 | P a g e

the Rules of judgments;

Court

on

execution

of

4. An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be the cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. 5. Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or foreign service establishments concerned, unless such competent authority subsequently certifies that such person is no longer insane or incompetent. Sec. 6. Personal Overseas Absentee Registration. Registration as an overseas absentee voter shall be done in person. Qualified citizens of the Philippines abroad who failed to register under Republic Act No. 8189, otherwise known as the "The Voters Registration Act of 1996", may personally apply for registration with the Election Registration Board of the city or municipality where they were domiciled immediately prior to their departure from the Philippines, or with the representative of the Commission at the Philippine embassies, consulates and other foreign service establishments that have jurisdiction over the locality where they temporarily reside. Subject to the specific guidelines herein provided, the Commission is hereby authorized to prescribe additional procedures for overseas absentee registration pursuant to the provisions of Republic Act No. 8189, whenever applicable, taking into strict consideration the time zones and the various periods and processes herein provided for the proper implementation of this

Act. The embassies, consulates and other foreign service establishments shall transmit within (5) days from receipt the accomplished registration forms to the Commission, after which the Commission shall coordinate with the Election Officer of the city or municipality of the applicants stated residence for verification, hearing and annotation in the permanent list of voters. All applications for the May, 2004 elections shall be filed with the Commission not later than two hundred eighty (280) calendar days before the day of elections. For succeeding elections, the Commission shall provide for the period within which applications to register must be filed. In the case of seafarers, the Commission shall provide a special mechanism for the time and manner of personal registration taking into consideration the nature of their work. 6.1. Upon receipt of the application for registration, the Election Officer shall immediately set the application for hearing, the notice of which shall be posted in a conspicuous place in the premises of the city or municipal building of the applicants stated residence for at least one (1) week before the date of the hearing. The Election Officer shall immediately furnish a copy of the application to the designated representatives of political parties and other accredited groups. 6.2. If no verified objection to the application is filed, the Election Officer shall immediately forward the application to the Election Registration Board, which shall decide on the application within one (1) week from the date of hearing without waiting for the quarterly meeting of the Board. The applicant shall be notified of the approval or disapproval of his/her application by registered mail. 6.3. In the event that an objection to the application is filed prior to or on the date of hearing, the Election Officer shall notify the applicant of said objection by registered mail, enclosing therein copies of affidavits or documents submitted in support of the objection filed with the said Election Officer, if any. The applicant shall

30 | P a g e

have the right to file his counter-affidavit by registered mail, clearly stating therein facts and defenses sworn before any officer in the host country authorized to administer oaths. 6.4. The application shall be approved or disapproved based on the merits of the objection, counter-affidavit and documents submitted by the party objecting and those of the applicant. 6.5 A Certificate of Registration as an overseas absentee voter shall be issued by the Commission to all applicants whose applications have been approved, including those certified as registered voters. The Commission shall include the approved applications in the National Registry of Absentee Voters. 6.6. If the application has been approved, any interested party may file a petition for exclusion not later than two hundred ten (210) days before the day of elections with the proper municipal or metropolitan trial court. The petition shall be decided within fifteen (15) days after its filing on the basis of the documents submitted in connection therewith. Should the court fail to render a decision within the prescribed period, the ruling of the Election Registration Board shall be considered affirmed. 6.7. If the application has been disapproved, the applicant or his authorized representative shall, within a period of five (5) days from receipt of the notice of disapproval, have the right to file a petition for inclusion with the proper municipal or metropolitan trial court. The petition shall be decided within five (5) days after its filing on the basis of documents submitted in connection therewith. Qualified citizens of the Philippines abroad, who have previously registered as voters pursuant to Republic Act No. 8189 shall apply for certification as absentee voters and for inclusion in the National Registry of Overseas Absentee Voters, with a corresponding annotation in the Certified Voters List.

Sec. 7. System of Continuing Registration. The Commission shall ensure that the benefits of the system of continuing registration are extended to qualified overseas absentee voters. Towards this end, the Commission shall optimize the use of existing facilities, personnel and mechanisms of the various government agencies for purposes of data gathering, data validation, information dissemination and facilitation of the registration process. Pre-departure programs, services and mechanisms offered and administered by the Department of Foreign Affairs, Department of Labor and Employment, Philippine Overseas Employment Administration, Overseas Workers Welfare Administration, Commission on Filipinos Overseas and other appropriate agencies of the government shall be utilized for purposes of supporting the overseas absentee registration and voting processes, subject to limitations imposed by law. Sec. 8. Requirements for Registration. Every Filipino registrant shall be required to furnish the following documents: a. A valid Philippine passport. In the absence of a valid passport, a certification of the Department of Foreign Affairs that it has reviewed the appropriate documents submitted by the applicant and found them sufficient to warrant the issuance of a passport, or that the applicant is a holder of a valid passport but is unable to produce the same for a valid reason; b. Accomplished registration form prescribed by the Commission containing the following mandatory information: i. Last known residence of the applicant in the Philippines before leaving for abroad; ii. Address of applicant abroad, or forwarding address in the case of seafarers; iii. Where voting by mail is allowed, the applicants mailing address outside the Philippines where the ballot for absentee voters will be sent, in proper cases; and;

31 | P a g e

iv. Name and address of applicants authorized representative in the Philippines for purposes of Section 6.7 and Section 12 hereof. c. In the case of immigrants and permanent residents not otherwise disqualified to vote under this Act, an affidavit declaring the intention to resume actual physical permanent residence in the Philippines not later than three (3) years after approval of his/her registration as an overseas absentee voter under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. The Commission may also require additional data to facilitate registration and recording. No information other than those necessary to establish the identity and qualification of the applicant shall be required. Lewis vs Comelec (Absentee Voting) Dual Filipino citizens pursuant to RA 9225 can avail themselves to vote of the mechanism provided under RA 9189 Absentee Voting Act, without violating the constitutional requirement on residency Sec.1 Art V of the Constitution because Sec. 2 of the same provision that congress shall establish a system where absentee may vote operates as an exeception to Sec 1 with respect to the residency requirement. Facts: In this petition for certiorari and mandamus, petitioners, referring to themselves as "duals" or dual citizens, pray that they and others who retained or reacquired Philippine citizenship under Republic Act (R.A.) No. 9225, the Citizenship Retention and Re-Acquisition Act of 2003, be allowed to avail themselves of the mechanism provided under the Overseas Absentee Voting Act of 2003 1 (R.A. 9189) and that the Commission on Elections (COMELEC) accordingly be ordered to allow them to vote and register as absentee voters under the aegis of R.A. 9189. Issue: Whether or not petitioners and others who might have meanwhile retained and/or reacquired Philippine citizenship pursuant to R.A. 9225 may vote as absentee voter under R.A. 9189.

Ruling: Yes they can vote and avail of RA 9189. As may be noted, there is no provision in the dual citizenship law - R.A. 9225 - requiring "duals" to actually establish residence and physically stay in the Philippines first before they can exercise their right to vote. That Section 2 of Article V (congress to provide a system of absentee voting)of the Constitution is an exception to the residency requirement found in Section 1 of the same Article. "Residence" is synonymous with "domicile.". "domicile" is the intent to return to one's home. And the fact that a Filipino may have been physically absent from the Philippines and may be physically a resident of the United States, for example, but has a clear intent to return to the Philippines, will make him qualified as a resident of the Philippines under this law. Citizenship Retention and Re-Acquisition Act expanded the coverage of overseas absentee voting. According to the poll body: With the passage of RA 9225 the scope of overseas absentee voting has been consequently expanded so as to include Filipinos who are also citizens of other countries, subject, however, to the strict prerequisites indicated in the pertinent provisions of RA 9225. Considering the unison intent of the Constitution and R.A. 9189 and the expansion of the scope of that law with the passage of R.A. 9225, the irresistible conclusion is that "duals" may now exercise the right of suffrage thru the absentee voting scheme and as overseas absentee voters. R.A. 9189 defines the terms adverted to in the following wise: "Absentee Voting" refers to the process by which qualified citizens of the Philippines abroad exercise their right to vote; "Overseas Absentee Voter" refers to a citizen of the Philippines who is qualified to register and vote under this Act, not otherwise disqualified by law, who is abroad on the day of elections; While perhaps not determinative of the issue tendered herein, we note that the expanded thrust of R.A. 9189 extends also to what might be tag as the next generation of "duals". This

32 | P a g e

may be deduced from the inclusion of the provision on derivative citizenship in R.A. 9225 Elements of the state 1. People 2. Territory 3. Government 4. Sovereignty SOVEREIGNTY Sovereignty as one of the elements of a state is the supreme and uncontrollable power inherent in a State by which that State is governed - it is the highest ruling authority - enjoys both external sovereignty (capacity to conduct foreign affairs without interference from other authorities or States and internal sovereignty (capacity to rule within its territory) - enjoys no higher or equal authority Kinds of Sovereignty 1. Real Sovereignty 2. Ceremonial Sovereignty symbol of unity among the State 3. Legal Sovereignty supreme powers to pass laws for the people to obey State being sovereign - cannot commit mistakes - the Royal Prerogative of Dishonesty : cannot be held liable because it cannot do any wrong - as a general rule cannot be sued in our courts or any foreign courts, likewise foreign states cannot also be sued Immunity from Suit (reasons) 1. Supreme, there can be no authority higher than it based on the very essence of sovereignty 2. Practical Ground - No law shall be passed equal or higher than the state or against it; there can be no legal right as against the authority that makes the law on which the right depends. 3. Royal Prerogative of Dishonesty - cannot be held liable because it cannot do any wrong 4. Public Policy public service should not be hampered, that public service would be hindered, and the public endangered, if the sovereign authority could be subjected to law suits at the instance of every

citizen and consequently controlled in the uses and dispositions of the means required for the proper administration of the government Relations to Foreign Countries 1. Absolute immunity of the state (imperium) authority possessed by the state embraced in the concept of sovereignty, state cannot be sued. 2. Classical (dominium) refers to the capacity to own or acquire property, including lands held by the State in its proprietary capacity, state can be sued. Two Concepts of Sovereign Immunity/Foreign State Immunity (Holy See vs Rosario) 1. Classical or absolute theory - a sovereign cannot, without its consent, be made a respondent in the courts of another sovereign. 2. Newer or restrictive theory the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure gestionis Holy See vs Rosario Facts: Holy See exercises sovereignty over the Vatican City in Rome while private respondent is a domestic corporation engaged in the real estate business. This case involved the sale of a lot by the petitioner to Tropicana which as claimed by herein private respondent was already previously sold to them. The controversy arouse when they encountered a problem evicting the squatters who refused to vacate the said lot. As a result of the said controversy herein private respondent filed an action for the annulment of the Deed of Sale against herein petitioner. Petitioner Holy See thru Msgr. Cirilos moved for the dismissal of the said action for lack of jurisdiction based on sovereign immunity from suit Issue: Whether or not Holy See is immune from suit Ruling : Yes, it is immune from suit. Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such an act can only be the start of the

33 | P a g e

inquiry. The logical question is whether the foreign state is engaged in the activity in the regular course of business. If the foreign state is not engaged regularly in a business or trade, the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit. Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made not for commercial purpose, but for the use of petitioner to construct thereon the official place of residence of the Papal Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a receiving state, necessary for the creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic Relations (Arts. 2022). This treaty was concurred in by the Philippine Senate and entered into force in the Philippines on November 15, 1965. The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental character. Petitioner did not sell Lot 5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made it almost impossible for petitioner to use it for the purpose of the donation. Besides, privilege of sovereign immunity in this case was sufficiently established by the Memorandum and Certification of the DFA, it formally intervened in this case and officially certified that the Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the Philippines exempt from local jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this country. Thus, Where the plea of immunity is recognized and affirmed by the executive branch, it is the duty of the courts to accept this claim so as not to embarrass the executive arm of the government in conducting the country's foreign relations. Waiver of immunity to suit when State enters into a treaty Immunity of State in its own country Sec 3, Art. XVI The state cannot be sued without its consent

General Rule: non-suability Exceptions: when State gives consent to be sued either express or implied Express consent when there is a law expressly granting authority to sue the State or any of its agencies; by Statute either by general or special law; if consent is based on a contract procedures set therein must be followed Civil Code Provisions Art. 2180 2186 :special agents, the state cannot invoke immunity because the government thru the special agent who represents it gives its consent A special agent is one who receives a definite and fixed order or commission, foreign to the exercise of the duties of his, the claim must arise form such special office and not on acts or omissions imputable to a public official charged with some administrative or technical office Art. 2180 if act is committed against it whether or not tainted with gross negligence or bad faith on the part of the public officer, State can be sued because it has expressly given its consent Implied consent - there is implied consent when 1. When the state initiates the filing of the complaint against a private individual seeking for affirmative relief unless the suit is entered only to resist a claim it is not an implied consent 2. When state enters in purely business it goes down to the level of an ordinary person, therefore can be sued 3. Expropriation cases when government takes the property of a private individual without just compensation 4. Reasons of equity and justice 5. When State enters into a commercial contract unless the contract is merely incidental to the performance of a governmental function US vs Ruiz - If directly connected to government functions State cannot be sued, file your claim to COA because State cannot be sued, id denied by COA then file a petition foe certiorari directly to SC.

34 | P a g e

When is a suit considered a suit against the state 1. When the Republic is sued by name 2. When the suit is against an unincorporated agency 3. When the suit is on its face against a government officer or public officer but the case is such that ultimate liability will belong not to the officer but to the government Affirmative Relief or ask for redress State waives its immunity Repeal a claim against it not a waiver of immunity State as a defendant involves loss of government funds, thus there has to be appropriation to answer civil liability Registration of Land cases it is always against the state under the Regalian Doctrine (all lands and resources belongs to the state),thus the State must be impleaded so that it will not complain. But in such action the Solicitor Genereal cannot move for the dismissal invoking loss of property on the part of the State because it is the applicant (landowners) who owns the land since time immemorial. Motu Proprio Dismissal the court is empowered to dismiss a case motu proprio if it involves loss of government property or disbursement of funds of the State, it the latter did not give its consent to be sued based on the principle of immunity against suits. When a suit results to a financial responsibility of the part of the government either by loss of government property or disbursement of funds of the State the principle of immunity from suit can automatically be applied pr invoked. Ministerio vs CA (1971) The Doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen Facts: The property of herein petitioner was expropriated by the government to be used in the road widening of Gorordo Avenue. However, the government thru its officials did not pay the petitioner-owners their just compensation worst the property was already takedn form then and

was condemned by the national government. When an action was instituted by the petitioner against the public officials for the payment of just compensation, the latter inviked immunity of the state form suit. Issue: Whether or not plaintiffs, now petitioners, seeking the just compensation to which they are entitled under the Constitution for the expropriation of their property necessary for the widening of a street, no condemnation proceeding having been filed, could sue defendants Public Highway Commissioner and the Auditor General, in their capacity as public officials without thereby violating the principle of government immunity from suit without its consent. Ruling: Yes hereion petitioner can sue the government without violating the constitutional provision ofthat the state cannot be sued without its consent. The doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen, as what happened in this case. Republic vs Sandoval This case was not considered a suit against the State because although the Republic was sued by its name the the ultimate liability does not pertain to the government. Although the military officers and personnel, then party defendants, were discharging their official functions when the incident occurred, their functions ceased to be official the moment they exceeded their authority. Based on the Commission findings, there was lack of justification by the government forces in the use of firearms The principle of state immunity from suit does not apply, as in this case, when the relief demanded by the suit requires no affirmative official action on the part of the State nor the affirmative discharge of any obligation which belongs to the State in its political capacity, even though the officers or agents who are made defendants claim to hold or act only by virtue of a title of the state and as its agents and servants. Facts: This was the aftermath of the tragic Mendiola massacre which resulted to the death of 12 rallyist. Their heirs now filed an

35 | P a g e

action for damages against the government based on an alleged recommendation for payment of compensation to the victims by Commission. On February 23, 1988, the Solicitor General filed a Motion to Dismiss on the ground that the State cannot be sued without its consent. Petitioners opposed said motion on March 16, 1988, maintaining that the State has waived its immunity from suit and that the dismissal of the instant action is contrary to both the Constitution and the International Law on Human Rights. Respondent Judge Sandoval, in his first questioned Order, dismissed the complaint as against the Republic of the Philippines on the ground that there was no waiver by the State, this it cannot be sued. Petitioners (Caylao group) advance the argument that the State has impliedly waived its sovereign immunity from suit. It is their considered view that by the recommendation made by the Commission for the government to indemnify the heirs and victims of the Mendiola incident and by the public addresses made by then President Aquino in the aftermath of the killings, the State has consented to be sued. law library Issue: Whether or not the State has waived its immunity from suit. Rule: No, the State did not waive its immunity from suit therefore it cannot be sued. Firstly, the recommendation made by the Commission regarding indemnification of the heirs of the deceased and the victims of the incident by the government does not in any way mean that liability automatically attaches to the State. Secondly, President same are waived its whatever acts or utterances that then Aquino may have done or said, the not tantamount to the State having immunity from suit.

(1) When the Republic is sued by name; (2) When the suit is against an unincorporated government agency; (3) When the, suit is on its face against a government officer but the case is such that ultimate liability will belong not to the officer but to the government. While the Republic in this case is sued by name, the ultimate liability does not pertain to the government. Although the military officers and personnel, then party defendants, were discharging their official functions when the incident occurred, their functions ceased to be official the moment they exceeded their authority. Based on the Commission findings, there was lack of justification by the government forces in the use of firearms. 17Moreover, the members of the police and military crowd dispersal units committed a prohibited act under B.P. Blg. 880 18as there was unnecessary firing by them in dispersing the marchers. 19 chanrobles virtual law library As early as 1954, this Court has pronounced that an officer cannot shelter himself by the plea that he is a public agent acting under the color of his office when his acts are wholly without authority. The principle of state immunity from suit does not apply, as in this case, when the relief demanded by the suit requires no affirmative official action on the part of the State nor the affirmative discharge of any obligation which belongs to the State in its political capacity, even though the officers or agents who are made defendants claim to hold or act only by virtue of a title of the state and as its agents and servants. 22This Court has made it quite clear that even a "high position in the government does not confer a license to persecute or recklessly injure another." Meriitt vs Republic Facts: Merritts motorcycle and the ambulance of the General Hospital collided. As a result of the said Merritt was severely injured. In order to determine who is liable for the said accident a law was passed Act No. 2457 authorizing Merritt to to bring suit against the Government of the Philippine Islands and

Thirdly, the case does not qualify as a suit against the State. Some instances when a suit against the State is proper are:

36 | P a g e

authorizing the Attorney-General of said Islands to appear in said suit. Plaintiff claims that by the enactment of this law the legislature admitted liability on the part of the state for the acts of its officers, and that the suit now stands just as it would stand between private parties. The trial court held that it was the collision between the plaintiff's motorcycle and the ambulance of the General Hospital was due to the negligence of the chauffeur Issue: As the negligence which caused the collision is a tort committed by an agent or employee of the Government, the inquiry at once arises whether the Government is legally-liable for the damages resulting therefrom. Ruling: No the government is not liable for the act of negligence committed by the Chauffer because the latter was not a special agent. It is only when a public employee is a special agent that the state can be held liable even if the special agent acted with bad faith or with negligence. Nowhere in the act (Act 2457) is there a whisper or suggestion that the court or courts in the disposition of the suit shall depart from well established principles of law, or that the amount of damages is the only question to be settled. The act opened the door of the court to the plaintiff. It did not pass upon the question of liability, but left the suit just where it would be in the absence of the state's immunity from suit. If the Legislature had intended to change the rule that obtained in this state so long and to declare liability on the part of the state, it would not have left so important a matter to mere inference, but would have done so in express terms. In the United States the rule that the state is not liable for the torts committed by its officers or agents whom it employs, except when expressly made so by legislative enactment, is well settled. By consenting to be sued a state simply waives its immunity from suit. It does not thereby concede its liability to plaintiff, or create any cause of action in his favor, or extend its liability to any cause not previously recognized. It merely gives a remedy to enforce a preexisting liability and submits itself to the jurisdiction of the court,

subject to its right to interpose any lawful defense. General Rule :the State is not responsible for the damages suffered by private individuals in consequence of acts performed by its employees in the discharge of the functions pertaining to their office, because neither fault nor even negligence can be presumed on the part of the state in the organization of branches of public service and in the appointment of its agents. Exception: when the public employee or orfficer acts through the agency of a special agent, doubtless because and only in this case, the fault or negligence, which is the original basis of this kind of objections, must be presumed to lie with the state. Liability of the State as to acts of its special agents : always liable even if the special agent acted with negligence Thus the responsibility of the state is limited by article 1903 to the case wherein it acts through a special agent (and a special agent, in the sense in which these words are employed, is one who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special official) so that in representation of the state and being bound to act as an agent thereof, he executes the trust confided to him. This concept does not apply to any executive agent who is an employee of the acting administration and who on his own responsibility performs the functions which are inherent in and naturally pertain to his office and which are regulated by law and the regulations." In a damage case, the responsibility of the state is limited to that which it contracts through a special agent, duly empowered by a definite order or commission to perform some act or charged with some definite purpose which gives rise to the claim, and not where the claim is based on acts or omissions imputable to a public official charged with some administrative or technical office who can be held to the proper responsibility in the manner laid down by the law of civil responsibility. It is, therefore, evidence that the State (the Government of the Philippine Islands) is only liable, according to the above quoted decisions of the Supreme Court of Spain, for the acts of its

37 | P a g e

agents, officers and employees when they act as special agents within the meaning of paragraph 5 of article 1903, supra, and that the chauffeur of the ambulance of the General Hospital was not such an agent.

the dismissal of the counterclaim filed by Pan Oriental against it. Issue : Whether or not the interpleader waived its immunity. State as an

Froilan vs Pan Oriental case (state as an interpleader No waiver of immunity because it is merely repealing a claim against it)

Ruling: No, the state as an interpleader in this case did not waive its immunity from suit because it is in a way repealing a claim against it. CGG vs Sandiganbayan (if government files an affirmative relief it impliedly waived its immunity) States immunity from suit because it took the initiative of filing the suit against a private partyBenedicto, thereby descending to the level of a private individual and thus opened itself to whatever counterclaims or defense the latter may have against it. Also, by entering with a private stripped itself of places itself in the into a compromise agreement party the Republic thereby its immunity from suit and same level of its adversary.

Facts: Froilan bought a ship from the Shipping Administration on an installment basis but subsequently failed to pay the same. As a result the immediate possession and suspension of its operation was ordered in favor of the Shipping Administration. But what took place was not only actually repossession, but the title thereto was registered again in the name of the Shipping Administration, thereby re-transferring the ownership thereof to the government. While the said ship was under the name of the government to save cost of its maintenance the same was chartered to herein private respondent Pan Oriental, thus in accordance with the said charter contract the vessel was delivered to the possession of Pan Oriental. Later as a result of several agreements Froilan was restored as the rightful owner by virtue of the original chattel mortgage contract but Pan Oriental refused to surrender possession of the vessel. Thus, Froilan filed an action for replevin to recover possession thereof and to have him declared the rightful owner of said property. The Republic of the Philippines, having been allowed to intervene in the proceeding, also prayed for the possession of the vessel in order that the chattel mortgage constituted thereon may be foreclosed. Defendant Pan Oriental resisted said intervention, claiming to have a better right to the possession of the vessel by reason of a valid and subsisting contract in its favor, and of its right of retention, in view of the expenses it had incurred for the repair of the said vessel. As counterclaim, defendant demanded of the intervenor (Republic) to comply with the latter's obligation to deliver the vessel pursuant to the provisions of the charter contract. Complaint in intervention filed by the Republic was dismissed , likewise Republic also sought for

Facts: The case is one of several suits involving ill-gotten or unexplained wealth that petitioner Republic, through the PCGG, filed with the Sandiganbayan against private respondent Roberto S. Benedicto and others pursuant to Executive Order (EO) No. 14 The government sequestered 227 shares of stocks in NOGCCI but it did not pay monthly membership dues. Later, the government and Benedicto entered a compromise agreement with the Republic impliedly acknowledging that the shares of stocks could not have been ill-gotten. The Sandiganbayan approved the said Compromise Agreement. By motion to release filed by Benedicto the Sandiganbayan issued the assailed order to deliver the shares of stock to the Clerk of Court. Furthermore, it held that the OCGG as sequesterreceiver of the said shares of stocks is liable to pay the delinquent shares. PCGG on the other hand as its last ditch attempt to escape liability invoked state immunity from suit. Issue: Whether or not PCGG can validly invoke immunity from suit.

38 | P a g e

Ruling: No PCGG cannot invoke states immunity from suit because it took the initiative of filing the suit against a private party-Benedicto, thereby descending to the level of a private individual and thus opened itself to whatever counterclaims or defense the latter may have against it. Also, by entering into a compromised agreement with Benedicto the Republic thereby stripped itself of its immunity from suit and places itself in the same level of its adversary. As argued, the order for it to pay the value of the delinquent shares would fix monetary liability on a government agency, thus necessitating the appropriation of public funds to satisfy the judgment claim.23 But, as private respondent Benedicto correctly countered, the PCGG fails to take stock of one of the exceptions to the state immunity principle, i.e., when the government itself is the suitor, as in Civil Case No. 0034. Where, as here, the State itself is no less the plaintiff in the main case, immunity from suit cannot be effectively invoked.24 For, as jurisprudence teaches, when the State, through its duly authorized officers, takes the initiative in a suit against a private party, it thereby descends to the level of a private individual and thus opens itself to whatever counterclaims or defenses the latter may have against it.25 Petitioner Republics act of filing its complaint in Civil Case No. 0034 constitutes a waiver of its immunity from suit. Being itself the plaintiff in that case, petitioner Republic cannot set up its immunity against private respondent Benedictos prayers in the same case. In fact, by entering into a Compromise Agreement with private respondent Benedicto, petitioner Republic thereby stripped itself of its immunity from suit and placed itself in the same level of its adversary. When the State enters into contract, through its officers or agents, in furtherance of a legitimate aim and purpose and pursuant to constitutional legislative authority, whereby mutual or reciprocal benefits accrue and rights and obligations arise therefrom, the State may be sued even without its express consent, precisely because by entering into a contract the sovereign descends to the level of the citizen. Its consent to be sued is implied from the very act of entering into such contract, breach of which on its part gives the corresponding right to the other party to the agreement.

Agencies of the Government 1. Incorporated if the charter provides that the agency can sue and be sued, then suit will lie, including one for tort. The provision in the charter constitutes express consent on the part of the State to be sued because it does not enjoy a separate and independent personality, so a suit against it is a suit against the State (eg. SSS, GSIS, UP) 2. Unincorporated needs to inquire into principal functions of the agency If performing governmental functions = NO SUIT without consent If incidental proprietary function = NO SUIT without its consent even if it enters into a commercial contract If purely proprietary function = SUIT will lie, because when it engages in principally proprietary functions, then it descends to the level of a private individual and may therefore be vulnerable to suit. If the proprietary function is merely incidental to its governmental function then the agency cannot be sued.

3.

Municipal Corporations they have a dual personality exercising both governmental and proprietary functions. - As to suability, if exercising purely governmental function cannot be sued, if purely proprietary can be sued but if proprietary functions are merely incidental cannot be sued - As to liability, if judgment is rendered against it in the exercise of its government function you need another authority or consent to garnish its funds but if exercising proprietary function funds can be garnished right away. - Even if there is a consent to be sued it is not automatic that the state incur civil liability because it requires appropriation ; can be sued as allowed by the LGC.

Camp John Hay Case - Hiring of cook in a restaurant business is purely proprietary business and is not incidental or related of its government function of providing military service to the people, therefore it can be sued. If state consents to be sued NO automatic civic liability incurred Reason:

39 | P a g e

1. There has to be appropriation from Congress as recommended by COA 2. Government must be solvent and all its money is already appropriated for a specific purpose 3. Government funds cannot be garnished and government properties cannot be attached because it will prejudice public service. Thus, as to money claims -> submit to concerned agencies COA -> COA approves, President recommends and Congress shall pass an appropriation law. COA denies, file mandamus to compel to pass an appropriation law Suit against Public Officers - The doctrine of State immunity also applies to complaints filed against officials of the State for acts performed by them in the discharge of their duties within the scope of their authority; their acts are considered acts of the State. - For such immunity to lie, the performance of their duties must not be tainted with abuse or done with grave abuse of discretion , or must be contrary to law or that authorized by its official function otherwise they can be sued in their personal capacity. - Ultra vires acts of the public officer, with bad faith , gross negligence not a suit against the State but a suit against him in its personal capacity Satellite vs Lichauco May 3, 2006 Ruling: Suit for acts done in the performance of official functions against an officer of the government by a private citizen which would result in a charge against or financial liability to the government must be regarded as a suit against the state itself, although it has not been formally impleaded. However, government immunity from suit will not shield the public official being sued if the government no longer has an interest to protect in the outcome of a suit, or if the liability of the officer is personal because it arises from a tortious acts in the performance of his/her duties. Government engages in business 1. If business is purely for profit nothing to do with governmental function - can be sued.

2. If business is merely incidental in the performance of governmental function cannot be sued. Contracts entered into by the State/Gov 1. Government Contracts relating to government functions , generally state cannot be sued. However, in case of breach, the contract shall be filed with COA to direct payment and to check if there was proper appropriation. RA 1447, if within 60 days COA has not taken any action then the case can be brought to the Supreme Court by Certiorari. 2. Commercial Contracts in case of breach, no need to pass through COA, you can sue the State/Gov. by entering into such contract the government had gone down to the level of an ordinary person capable of being sued. Expropriation 1. There is always an appropriation fund 2. The state enjoys/exercises rights over the property of private individuals - When there is NO PAYMENT of just compensation = STATE/Gov can be sued - If the appropriated money is lacking as opposed to that awarded or determined by the court as just compensation, the issue shall be submitted to COA, then the President/LGC if proper shall recommend for appropriation, if refused the aggrieved party can sue the state by MANDAMUS 3. State can always be sued in expropriation cases Writ of execution final judgment is satisfied thru an appropriation law because the presumption is that government funds are already intended for a specific purpose, otherwise it results to prejudicing public service. Republic vs Lim Kinds of Government 1. Monarchial one person ruling (dictatorship, tyrannical, autocratic) 2. Aristocracy oligarchy, bureaucratic, totalitarian 3. Democratic government of the people for and by the people Forms of Government

40 | P a g e

1. As to relationship of the three branches of


the government Presidential three branches are independent form each other Principle of Check and Balance to balance the powers of the three branches of the government under the presidential form ; making of the law has to be signed by the president also can be reviewed by the court ; Supreme Court if it makes a mistake in its judgment the President can grant pardon or Congress can repeal the law punishing it so that no crime has been committed; there is also impeachment against the Government. Parliamentary - when two systems or branches of the government merge as to exercise of powers; fusion of powers between legislative and executive ; majority of the cabinet is a member of the parliament this is common in Great Britain; as to term of office of the Prime Minister he hold office so long as he holds the trust of the parliament; Prime Minister can always dissolve the parliament if there are contradictions =check and balance ; their parliament is equivalent to Congress in the presidential form 2. According to powers Unitary power concentrated to the national government (this what we have in the Philippines Federal equally shared between local and national Limbona vs Mangelin (power still concentrated to the national government) Facts: This case involved the two autonomous government of region IX and XII as they were instituted are they still subject to the jurisdiction of the national court in other words what is the extent of self-government given to the two autonomous governments. Ruling: By virtue of such autonomy Philippines follows decentralization of administration which means that the central government delegates administrative powers to political

subdivisions in order to broaden the base of government power and in the process to make local governments more responsive and accountable and ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress. Decentralization of pwer on the hand involves an abdication of political power in the favor of local government units declare to be autonomous. Thus, it amounts to self-immolation because the autonomous government becomes accountable not to the central authority but to its constituency. Basco vs concentrated government) Pagcor (power still to the national

Facts: Does the creation of PAGCOR thru PD 1869 operate as a waiver on the part of the City of Manila on its power to impose local taxes? as the said Charter exempts PAGCOR from payment of taxes. Ruling: No, because the charter of the City of Manila is subject to control by Congress, being a mere municipal corporation it has no inherent power to tax and local governments have no power to tax instrumentalities of the National government. 3. According to transfer of powers Hereditary inheritance form one generation to generation Great Britain Monarchial Primodial eldest descendant Anxiety to the oldest member Elective transfer by election (this is what we have in the Philpinnes) Direct through or directly by the people Inderict through the electoral collegiate 4. According to legitimacy of government De Jure supported by the general people and by the Constitution; legitimate in law and has the consent of the rightful authority

41 | P a g e

2.

3.

De Facto exercising government in fact only and not in law Three Kinds of De Facto Government 1. Government established by the inhabitants of a territory who rise in insurrection against the parent state (established independence from Mother Spain) Government established by invading forces/troops of an enemy who occupy a territory in the course of a war (Belligerent Government) Government established after overthrowing an established government (eg. by coup d etat the Aquino government is a revolutionary government but its validity was confirmed by the ratification of the 1987 Constitution) Aquino Government was valid 1. Support of the family of nations 2. Concealed by the election in the senate 3. Confirmed thru the ratification of the 1987 Constitution

Constitutional Government when the powers are being defined and limited by the Constitution Beurocratic you need to have the money to wage a nationwide campaign

Prescription does not run against the government when performing governmental functions only when it exercised propriety function where prescription runs PP vs Raffy On Japanese Occupation - No transfer of sovereignty - Suspension of political laws except laws on treason - Municipal laws or none political laws remain valid unless repealed by the occupants - Loss that are non-political they remain valid unless repealed by the Belligerent - Upon return of Americans political laws during the Japanese occupation were automatically abrogated but non-political laws remain valid unless repealed subsequently What is government (Revised Administrative Code) - The government entity through which the functions of the government are exercised throughout the Philippines, including save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial city, municipal or barangay subdivisions or other forms of local government. Doctrine of Parens Patriae the government may act as guardian of the rights of people who may be disadvantaged or suffering from disability or misfortune (this justifies the governments intervention to those needing help)

Desierto vs Estrada Arroyo was deemed president by means of succession Why Estrada was considered resigned and Arroyo declared President 1. When one relinquish his powers 2. Manifestation of abandonment of office it is not necessary that there be a written resignation letter what is important is that there are manifestations thereof 5. According to functions Constituent- which are mandatory for the government to perform because they constitute the very bonds of society such as the maintenance of peace and order, regulation of property and property rights, the administration of justice etc. Ministrant those intended to promote the welfare, progress and prosperity of the people and which are merely optional for the government to perform. 6. . Other Forms Civilian controlled by the civilians

ARTICLE II PRINCIPLES PRINCIPLES

AND

DECLARATION OF STATE POLICIES

Section 1. The Philippines is a democratic and republican State. Sovereignty resides in the

42 | P a g e

people and all government authority emanates from them. (Republicanism) Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. Section 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory. Section 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military or civil service. Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. Section 6. The separation of Church and State shall be inviolable. STATE POLICIES Section 7. The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to selfdetermination. Section 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory. Section 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.

Section 10. The State shall promote social justice in all phases of national development. Section 11. The State values the dignity of every human person and guarantees full respect for human rights. Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. Section 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs. Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men. Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. Section 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. Section 17. The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development. Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. Section 19. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos. Section 20. The State indispensable role of the recognizes the private sector,

43 | P a g e

encourages private enterprise, and incentives to needed investments.

provides

Section 21. The State shall promote comprehensive rural development and agrarian reform. Section 22. The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development. Section 23. The State shall encourage nongovernmental, community-based, or sectoral organizations that promote the welfare of the nation. Section 24. The State recognizes the vital role of communication and information in nationbuilding. Section 25. The State shall autonomy of local governments. ensure the

The WTO opens access to foreign markets, especially its major trading partners, through the reduction of tariffs on its exports, particularly agricultural and industrial products. Thus, provides new opportunities for the service sector cost and uncertainty associated with exporting and more investment in the country. These are the predicted benefits as reflected in the agreement and as viewed by the signatory Senators, a free market espoused by WTO. Petitioners on the other hand viewed the WTO agreement as one that limits, restricts and impair Philippine economic sovereignty and legislative power. That the Filipino First policy of the Constitution was taken for granted as it gives foreign trading intervention. Issue : Whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Senate in giving its concurrence of the said WTO agreement. Held: In its Declaration of Principles and state policies, the Constitution adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity , with all nations. By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered automatically part of our own laws. Pacta sunt servanda international agreements must be performed in good faith. A treaty is not a mere moral obligation but creates a legally binding obligation on the parties. Through WTO the sovereignty of the state cannot in fact and reality be considered as absolute because it is a regulation of commercial relations among nations. Such as when Philippines joined the United Nations (UN) it consented to restrict its sovereignty right under the concept of sovereignty as autolimitation. What Senate did was a valid exercise of authority. As to determine whether such exercise is wise, beneficial or viable is outside the realm of judicial inquiry and review. The act of signing the said agreement is not a legislative restriction as WTO allows withdrawal of membership should this be the

Section 26. The State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law. Section 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. Section 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. Art II of the Constitution are just mere guidelines but not judicial or legal basis, thus they are not self-executing. Tanada vs Angara Unless there is a legislative enactment implementing the provisions of the law, Art II of the Constitution cannot be made as basis of judicial relief or a legal basis. Facts : This is a petition seeking to nullify the Philippine ratification of the World Trade Organization (WTO) Agreement. Petitioners question the concurrence of herein respondents acting in their capacities as Senators via signing the said agreement.

44 | P a g e

political desire of a member. Also, it should not be viewed as a limitation of economic sovereignty. WTO remains as the only viable structure for multilateral trading and the veritable forum for the development of international trade law. Its alternative is isolation, stagnation if not economic self-destruction. Thus, the people be allowed, through their duly elected officers, make their free choice. Petition is DISMISSED for lack of merit. Republicanism a republic state is a state wherein all government authority emanates from the people a d is exercised by representatives chosen by the people. Manifestations of Republicanism 1. Ours is government of laws and not of men Villavicencio vs Lukban Facts: Women that were known prostitutes of Manila were expelled from the City of Manila and were sent to different places in Mindanao without their knowledge or against their will as ordered by the then Mayor of Manila Lukban. The women were sent there allegedly as laborers. Thus, a writ of habeas corpus was filed ans was granted by the court but was initially ignore by Mayor Lukban. Issue: Shall the judiciary permit a government of the men instead of a government of laws to be set up in the Philippine Islands? Ruling: No, When all is said and done, as far as this record discloses, the official who was primarily responsible for the unlawful deportation, who ordered the police to accomplish the same, who made arrangements for the steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and who later, as the head of the city government, had it within his power to facilitate the return of the unfortunate women to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to suppress the social evil was commendable. His methods were unlawful. His regard for the writ of habeas corpus issued by the court was only tardily and reluctantly acknowledged.

In concluding this tedious and disagreeable task, may we not be permitted to express the hope that this decision may serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from illegal encroachment. 2. 3. 4. 5. 6. Rule of the majority (plurality in elections) Accountability of public officials Bill of Rights Legislature cannot pass irrepealable laws Separation of powers

Separation of powers - Independent within its own sphere; cannot be interfered with or encroached upon by any other branch of the government. Principle of check and balances this allows one department to resist encroachment upon its prerogatives or to rectify mistakes or excesses committed by the other departments Legislative- Congress may be checked by the Executive branch thru the Presidents veto power be recommending what law to be passed; may also be reviewed by the Judiciary department if the same was entered into contrary to the Constitution Judiciary if its judgment is contrary to law the Executive thru the President can grant pardon or Congress can repeal the law so when there is no law no crime has been committed. Executive can be checked by Congress thru impeachment, there is also an implied powers of Congress to hold Executive officials in contempt f refuses to appear in an investigation thru Legislative inquiry or by the Judiciary in cases where there is abuse or excess in the exercise of discretion Abuse of Discretion when discretionary powers of the two branches Executibe and Legislative are abused, the Judiciary can interfere but this does not mean that the Judiciary is superior than the two branches because it cannot motu proprio inquire there are requisites that need to be complied with. Requisites: Judiciary Interference 1. Actual case or controversy raised by the party at the earliest opportunity

45 | P a g e

2. 3.

The issue is the lis mota of the case Locus standi

General Rule : powers is constitutionally conferred upon the department claiming its exercise and the conferment is usually express Exception: Doctrine of Necessary Implication that the grant of express powers carries with it the powers that may be reasonably inferred from it or those which are neither expressly conferred nor implied there from are inherent or incidental eg. the Presidents power to deport an alien is considered an Act of the State Delegation of Powers - A delegated power constitutes not only a right but a duty to be performed by the delegate through the instrumentality of his own judgment and not through the intervening mind of another. - A delegate cannot be superior to the one conferring it with authority or the source of authority. Permissible Legislative Delegation

1. Tariff powers of the President

(Sec. 28 (2) Art. VI) - The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. 2. Emergency Powers of the President / Residual Powers of the President (Sec 23 (2) Art VI) - In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. 3. People (Sec 32 Art VI) - The Congress shall, as early as possible, provide for a system of initiative and

4.

referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters thereof. (Sec 10 Art X) - No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. (Sec 2 Art XVII) - Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. Local Government (Art X) (RA 7610) 5. Administrative Bodies through the power of Subordinate Legislation which allows the administrative bodies to supply the details of the law to complete the law because they are in better position by reason of their specialized skills they are allowed to promulgate rules and regulations for the implementation of the law. (limited only to rules and regulations)

Powers exercised by the other Branches by express provision of the law 1. Appointment by nature Executive however Congress can appoint their own staff and likewise the Judiciary

46 | P a g e

2. Interpretation

of Laws by nature Judiciary but Executive Administrative Bodies exercise quasi-judicial likewise Congress thru impeachment 3. Enactment of Laws by nature Legislative but Executive Administrative Bodies thru Subordinate Legislation where they promulgate rules and regulations for the execution and implementation of laws. Emergency Powers of the President (Sec 23 Art VI) - Without need of legislative enactment but such power shall cease upon the next adjournment of Congress Sanlakas Case Facts: Party-list organizations Sanlakas and Partido ng Manggagawa (PM), contend that Section 18, Article VII of the Constitution does not require the declaration of a state of rebellion to call out the armed forces. They further submit that, because of the cessation of the Oakwood occupation, there exists no sufficient factual basis for the proclamation by the President of a state of rebellion for an indefinite period. Ruling: The declaration of State of Rebellion by President Arroyo was declared valid because 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), thus her declaration of the State of Rebellion was declared valid and a prior legislative act (by law) is no longer necessary because she is merely exercising her Emergency Powers under Art VII. David vs Exec Secretary Foreign relations is matter best committed to the executive branch as they are in the best position to make a better judgment for the interest of the country as a whole, unless there is greave abuse of its discretion, courts will not interfere. Facts: Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization established for the purpose of providing aid to the victims of rape by Japanese

military forces in the Philippines during the Second World War. They filed this petition against the Executive department through its officials for failure of the latter to heed to their request. Respondents on the other hand claims that the comfort women for compensation had already been fully satisfied by Japans compliance with the Peace Treaty between the Philippines and Japan. In the said treaty the Philippines made a general waiver on the part of the Philippines and acceptance of Japans apologies as well as funds from the Asian Womens Fund (AWF), all these petitioners claim to void and contrary to international laws. Issue: whether the Executive Department committed grave abuse of discretion in not espousing petitioners claims for official apology and other forms of reparations against Japan. Ruling: We thus hold that, from a municipal law perspective, that certiorari will not lie. As a general principle and particularly here, where such an extraordinary length of time has lapsed between the treatys conclusion and our consideration the Executive must be given ample discretion to assess the foreign policy considerations of espousing a claim against Japan, from the standpoint of both the interests of the petitioners and those of the Republic, and decide on that basis if apologies are sufficient, and whether further steps are appropriate or necessary. In Taada v. Cuenco, we held that political questions refer "to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure." Certain types of cases often have been found to present political questions. One such category involves questions of foreign relations. It is wellestablished that "[t]he conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative--'the political'--departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision." To be sure, not all cases implicating foreign relations present political questions, and courts certainly possess the authority to construe or invalidate treaties and executive agreements. However, the question whether the Philippine government should espouse claims of its nationals against a foreign

47 | P a g e

government is a foreign relations matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the political branches. In this case, the Executive Department has already decided that it is to the best interest of the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question. Neither could petitioners herein assail the said determination by the Executive Department via the instant petition for certiorari. The Executive Department has determined that taking up petitioners cause would be inimical to our countrys foreign policy interests, and could disrupt our relations with Japan, thereby creating serious implications for stability in this region. For us to overturn the Executive Departments determination would mean an assessment of the foreign policy judgments by a coordinate political branch to which authority to make that judgment has been constitutionally committed. Abakada Guro Case Facts: Petitioners ABAKADA GURO Party List, et al., Pimentel, Jr., et al., and Escudero, et al. contend in common that Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108, respectively, of the NIRC giving the President the stand-by authority to raise the VAT rate from 10% to 12% when a certain condition is met, constitutes undue delegation of the legislative power to tax. Ruling: There is no undue delegation of legislative power but only of the discretion as to the execution of a law. This is constitutionally permissible. In every case of permissible delegation, there must be a showing that the delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate;[41] and (b) fixes a standard ' the limits of which are sufficiently determinate and determinable ' to which the delegate must conform in the performance of his functions.

[43]

Both tests are intended to prevent a total transference of legislative authority to the delegate, who is not allowed to step into the shoes of the legislature and exercise a power essentially legislative. Clearly, the legislature may delegate to executive officers or bodies the power to determine certain facts or conditions, or the happening of contingencies, on which the operation of a statute is, by its terms, made to depend, but the legislature must prescribe sufficient standards, policies or limitations on their authority.[49] While the power to tax cannot be delegated to executive agencies, details as to the enforcement and administration of an exercise of such power may be left to them, including the power to determine the existence of facts on which its operation depends. This case before the Court is not a delegation of legislative power. It is simply a delegation of ascertainment of facts upon which enforcement and administration of the increase rate under the law is contingent. The legislature has made the operation of the 12% rate effective January 1, 2006, contingent upon a specified fact or condition. It leaves the entire operation or nonoperation of the 12% rate upon factual matters outside of the control of the executive. No discretion would be exercised by the President. Test for Valid Delegation

1. Completeness Test the law must be


complete in all its essential terms and conditions when it leaves the legislature so that there will be nothing left for the delegate to do when it reaches him except to enforce it.

2. Sufficient Standard Test a sufficient


standard is intended to map out the boundaries of the delegates authority by defining the legislative policy and indicating the circumstances under which it is to be pursued and effected. This is intended to prevent a total transference of legislative power from the legislature to the delegate. The standard is usually dedicated in the law delegating legislative power. MMDA vs Bel-Air

[42]

A sufficient standard is one which defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected.

48 | P a g e

Facts: Bel-Air Village Association, Inc. (BAVA) is the registered owner of Neptune St. In a letter, MMDA ordered BAVA to open the said street for vehicular traffic. BAVA filed an injunction, thereafter the appellate court rendered a Decision on the merits of the case finding that the MMDA has no authority to order the opening of Neptune Street, a private subdivision road and cause the demolition of its perimeter walls. It held that the authority is lodged in the City Council of Makati by ordinance. MMDA on the hand claimed that their act is valid because they are merely exercising police power and that a prior ordinance from the City of Makati is no longer necessary. Ruling: MMDA is not a political unit of government. The power delegated to the MMDA is that given to the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the MMDAs functions. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. It is thus beyond doubt that the MMDA is not a local government unit or a public corporation endowed with legislative power. In the absence of laws as the case herein the act of MMDA of requiring BAVA to open Neptue St is without authority. It will be noted that the powers of the MMDA are limited to the following acts: formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installation of a system and administration. There is no syllable in R. A. No. 7924 that grants the MMDA police power, let alone legislative power. Even the Metro Manila Council has not been delegated any legislative power. Unlike the legislative bodies of the local government units, there is no provision in R. A. No. 7924 that empowers the MMDA or its Council to "enact ordinances, approve resolutions and appropriate funds for the general welfare" of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a "development authority." Deren vs MMDA confiscation of drivers license by the MMDA was held valid because it is empowered to promulgate rules and regulations, thus as part of it, it can confiscate. Francisco et al vs Comelec- MMDA does not exercise police powers but is authorized to promulgate rules and regulations when it comes to traffic management , thus the act of pouring

water to jay walkers or traffic violators are valid and are considered mere precautionary measures. Limitations on the Delegation of Powers to LGUs - There cannot be an exercise of power without express grant form Congress by Statute - Cannot exercise power contrary to laws passed by Congress and the same must be consistent with the Constitution - Cannot prohibit an activity allowed by existing laws, eg. PAGCOR but they can only regulate - It cannot amend national laws already passed by Congress - There powers are territorial in nature and in application such that it can only exercise the same within its own jurisdiction - Ordinance must be reasonable and not oppressive Delegation to People 1. Initiatives on Statutes people directly signing the petition 2. Initiatives on Local Legislation - certain number of registered voters needed to sign (upon a petition of at least 12% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the registered voters therein.) 3. Initiatives on Constitutional Amendments RA 6735 people need to sign on the face of the petition itself Lambino vs Comelec Facts: The Lambino Group's initiative petition changes the 1987 Constitution by modifying Sections 1-7 of Article VI (Legislative Department) and Sections 1-4 of Article VII (Executive Department) and by adding Article XVIII entitled "Transitory Provisions." These proposed changes will shift the present Bicameral-Presidential system to a UnicameralParliamentary form of government. The Lambino Group prayed that after due publication of their petition, the COMELEC should submit the following proposition in a plebiscite for the voters' ratification.

49 | P a g e

Ruling : Petition was dismissed. The essence of amendments "directly proposed by the people through initiative upon a petition" is that the entire proposal on its face is a petition by the people. This means two essential elements must be present. First, the people must author and thus sign the entire proposal. No agent or representative can sign on their behalf. Second, as an initiative upon a petition, the proposal must be embodied in a petition. These essential elements are present only if the full text of the proposed amendments is first shown to the people who express their assent by signing such complete proposal in a petition. Thus, an amendment is "directly proposed by the people through initiative upon a petition" only if the people sign on a petition that contains the full text of the proposed amendments. The full text of the proposed amendments may be either written on the face of the petition, or attached to it. If so attached, the petition must state the fact of such attachment. This is an assurance that every one of the several millions of signatories to the petition had seen the full text of the proposed amendments before signing. Otherwise, it is physically impossible, given the time constraint, to prove that every one of the millions of signatories had seen the full text of the proposed amendments before signing. The purpose of the full text requirement is to provide sufficient information so that registered voters can intelligently evaluate whether to sign the initiative petition. The Lambino Group did not attach to their present petition with this Court a copy of the paper that the people signed as their initiative petition. Referendum it is Congress who proposes and people approve or deny t

relevant when there is no law applicable and you have to apply international laws So long as the principles of international laws are generally accepted principles automatically it is adopted as part of our laws here in the Philippines and forms part of our local laws This involves the transformation of international laws to local laws

INCORPORATION - Applies when there is a conflict as to domestic and international law - SC Ruling ; as much as possible domestic and international laws must be harmonized because international agreements should not be entered when contrary to domestic laws and no domestic laws should be passed thereafter if it is contrary to such international agreements previously entered. But, in case of conflict MUNICIPIAL or domestic laws shall PREVAIL. Sec of Justice vs Lantion International law is given equal standing but not superior to national legislative enactment. The principle lex posterior degorat oriori takes effect a treaty may repeal a statute and a statute may repeal a treaty. Both can be invalidated if it contravenes the Constitution. Facts : On June 18, 199 , the Department of Justice received from the Department of Foreign Affairs U.S. Note No. 0522 containing a request for the extradition of private respondent Mark Jimenez. Secretary of Justice then ordered a technical evaluation and assessment of the extradition request. Pending evaluation, private respondent (Mark Jimenez) through counsel wrote a letter addressed to herein petitioner (Sec of Justice) requesting copies of official extradition request from the US Government. He requested ample time to comment and for the matter to be held in abeyance in the meantime. Secretary of Justice denied the said request specifically invoking our countrys responsibility to the Vienna Convention on the law of Treaties that every treaty in force is binding upon parties to it and must be performed by them in good faith. Extradition is a toll of criminal law

Sec. 2 Art II - The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. (what is renounced here is aggressive war and NOT defensive war) Incorporation Clause

50 | P a g e

enforcement and to be effective must be processed expeditiously. Particularly in this case is the RP-US Extradition Treaty. Extradition is the process by which persons charged with or convicted of crimes against the law of a State and found in a foreign state are returned by the latter to the former for trial or punishment. Pacta sunt servanda requires the parties to a treaty to keep their agreement therein in good faith. The observance of our countrys legal duties under a treaty is also compelled by Section 2, Article II of the Constitution. The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the nation. Under the doctrine of incorporation, rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. After the denial of the request letter, Mark Jimenez filed a petition against herein Secretary of Justice. RTC presiding Judge Lantion favored Jimenez. Thus, this petition is now at bar. Issue: Whether or not respondent Judge Lantion acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the temporary restraining order to herein petitioner in performing his legal duties as Secretary of Justice. Held : The Extradition Law provides Rules of Court shall apply, thus extradite has the basic right of notice and hearing. The RP-US Extradition Treaty under the Incorporation Clause in case of conflict is not superior over a national law. International law is given equal standing but not superior to national legislative enactment. The principle lex posterior degorat oriori takes effect a treaty may repeal a statute and a statute may repeal a treaty. In States where the constitution is the highest law of the land, such

as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution. Thus, petitioner is ordered to furnish private respondent copies of the extradition request and its supporting papers and to grant him (Jimenez) a reasonable period within which to file his comment and supporting evidence There was only a void on some provisions of the RP-US Extradition Treaty as regards to the basic due process right of a prospective extradite at the evaluation stage of the extradition proceeding. RTCs decision is rendered moot and academic and herein petition is DISMISSED. Lim vs Exec Sec Facts: In line with President Gloria MacapagalArroyo's pledge to render all-out aid to the US in its campaign against "global terrorism," an arrangement for a. joint military exercises known as "RP-US Balikatan 02-1 Exercises" was entered into between the US and Philippine authorities, allegedly within the ambit of the Visiting Forces Agreement (V FA) with the main objective of enhancing the operational capabilities of the countries in combating terrorism. Petitioners now seek the issuance of a writ of prohibition/injunction to prevent US troops from participating in areas of armed conflict on the ground that such is in gross violation of the Constitution. Ruling: There is no treaty allowing US troops to engage in combat Generally accepted principles of International Law, 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. Ichong vs Hernandez Ruling: In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are

51 | P a g e

organs of municipal law and are accordingly bound by it in all circumstances . Pharmaceutical and Health Care vs Duque Ruling: In the absence of a local law the international law shall be applied by incorporation clause therefore, justified. Customary international law is deemed incorporated into our domestic system. A mere constitutional declaration, international law is deemed to have the force of domestic law. What are generally accepted principles 1. Treaties ratified by the president , considered part of domestic laws no need of legislation (note that what are considered part of our domestic laws are only those RATIFIED) Pimentel vs Ermita (it is the Presidents Ratification which binds the Philippines) Facts: The core issue in this petition for mandamus is whether the Executive Secretary and the Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine Mission to the United Nations even without the signature of the President. Ruling: The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments of ratification. Ratification, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them.

Ratification, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representative. It is generally held to be an executive act, undertaken by the head of the state or of the government. It mandates that after the treaty has been signed by the Philippine representative, the same shall be transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare the ratification papers and forward the signed copy of the treaty to the President for ratification. After the President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate for concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs shall comply with the provisions of the treaty to render it effective. In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the countrys sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the countrys mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations.[13] In the realm of treaty-making, the President has the sole authority to negotiate with other states. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that no treaty or international agreement shall be valid and effective unless concurred in by at least twothirds of all the Members of the Senate.

2. Norm of general and customary laws


eg Immunity of Heads of State , Alien deported has no right to bail. Mijares vs Javier Ruling: There is no obligatory rule derived from treaties or conventions that requires the Philippines to recognize foreign

52 | P a g e

judgments, or allow a procedure for the enforcement thereof. However, generally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees those customary rules accepted as binding result from the combination two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. Thus, enforcement of foreign judgment is allowed so long as you can prove such judgment to be valid by virtue of the incorporation clause. Two requirements to make a conduct a norm of conduct a. Established widespread and consistent practice on the part of the State b. The recognition of its necessity

and enforcement of Executive Order No. 68. which provided the organization of such military commissions, established National War Crimes Office and prescribing rules and regulations governing the trial of accused war criminals. Attorneys Melville Hussey and Robert Port of the United States of America participated in the prosecution of the case in behalf of the United States of America. Issue : Whether or not Executive Order No. 68 is legal and constitutional. Held : This court holds that the Executive Order No. 68 is legal and constitutional as provided in Sec. 3, Art. II of the Constitution, that The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the nation. The participation of the two American attorneys although under our law, they are not qualified to practice law is valid and constitutional. Military Commission is a special military tribunal governed by special law not by Rules of the Court, which govern ordinary civil courts. There is nothing in Executive Order No.68 which requires counsels need to be qualified to practice law in the Philippines. In fact, it is common in military tribunals that counsels for the parties are usually military personnel. Under the doctrine of incorporation, although the Philippines was not a signatory of the Hague and Geneva Conventions, international jurisprudence is automatically incorporated in Philippine law, thus making war crimes punishable in the Philippines. The Military Commission having been convened by virtue of a valid law, with jurisdiction over the crimes charged which fall under the provisions of Executive Order No 68, and having jurisdiction over the person of the petitioner by having said petitioner in its custody, the court will not interfere with the due process of such Military Commission. Petition is denied with costs de oficio.

3. Obligatory treaties although we are


not signatories of it - a treaty that becomes a customary law , they form part of customary laws because they are accepted by all members of the league of nations Once it becomes a customary law even if Philippines is not a signatory of it we are bound by such treaty

Kuroda vs Jaladoni Facts : Shigenori Kuroda, a former LieutenantGeneral of the Japanese Imperial Army and Commanding General of the Imperial Forces of the Philippines was charged before a Military Commission convened by the Chief of Staff of the Armed Forces of the Philippines. He had unlawfully disregarded and failed to discharge his duties as a commander to control the operations of members of his command. Petitioner was duly prosecuted for acts committed in violation of the Hague Convention and the Geneva Convention through the issuance

53 | P a g e

Mejoff vs Director of Prisons Facts : This is a second petition for habeas corpus by herein petitioner. Mejoff is an alien of Russian decent. He was brought to this country from Shanghai as a secret operative by the Japanese forces. Upon liberation, he was arrested as a Japanese spy. He was deported having been found out that he has no travel documents and his entry here in the Philippines was illegal. The Deportation Board ordered the immigration officials for his deportation on the first transportation to Russia. He was moved in Cebu where two Russian ships were scheduled, but each respective masters of the ship refused to take petitioner due to no authority to do so. Thus, respondent was moved again to Bilibid Prison, Muntinglupa. Since then and until the time this case was initiated he was still detained in the said jail. Issue : Whether or not an aliens prolonged detention is unlawful. Held : Petitioners entry here in the Philippines was not illegal since he was brought here by the armed force of the then de facto government. The Philippines adopts the generally accepted principles of international law as part of the law of the Nation. Thus, in view of this principle the resolution entitled Universal Declaration of Human Rights approved by the general assembly of the United Nations , Philippines is a member. This provides the right to life and liberty and all other fundamental rights as applied to all human beings proclaimed without any distinction. It has been said that the petitioner was engaged in subversive activities. If the only purpose of the detention is to eliminate danger, government is not impotent to deal or prevent any threat. The prolonged detention of herein petitioner is not the only way of governments keeping our country safe and peaceful. The writ will issue commanding the respondent to release the petitioner from custody upon terms. The petitioner shall be placed under surveillance of the immigration authorities and insure that he keep peace and be available when the

Government is ready No cost will be charged.

to

deport

him.

Civilian Supremacy Sec 3 Art II Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory. (military is to protect external aggression) Sec. 18 Art VII Commander in Chief Clause Manifestations of Civilian Authority 1. President is a civilian and has the highest position 2. Congress appropriating funds to the Military 3. Matter of recruitment, prohibition of military men to civilian positions 4. Establishment of court marshals where military men are accused of violations of articles of war IBP vs Zamora Facts: Case for prohibition/certiorari filed by IBP against Exec. Sec, PNP Chief etc seeking the nullify on constitutional grounds the order of then President Estrada commanding the deployment of the Marines to join the PNP for visibility patrols. This was due to the rise of violent crimes in Metro Manila. To improve the peace and order situation, the Marines was to augment the PNP for increased police patrols. The President invokes his powers as Commander-in-Chief under Section 18, Art. VII of the Constitution. Issue: Whether or not the deployment of Marines to augment the PNP is violative of the civilian supremacy clause? Ruling: The deployment of the Marines did not violate the civilian supremacy clause. The case consitutes permissible use of military assets for civilian law enforcemnet i.e. joint visibility patrols. The role of Marines was limited as the the civilian PNP is in charge. The real authority was with the PNP with the Manila Police Chief as overall head. The AFP does not exercise any control. None of the Marines were incorporated into the PNP. As such, civilian authority is still supreme over the military. The Marines rendered nothing more that assitance.

54 | P a g e

What exist is only mutual support and cooperation. Military assitance to civilian authorities perists, examples of previous implementation include, civil functions such as elections, Red Cross operations, disaster relief and rescue, licensure exams, nationwide exams, etc. To be a violation of posse comitatus, there must be exercise of military power which is regulatory (controls or directs,) proscriptive (prohibits or condemns) or compulsory (exerts coercive force) Applying these, no violation of civilian supremacy was committed.. As per LOI, Marines do not control or direct operation, no power to prohibit or condemn, arrested persons must be brought to nearest police station thus no coercive force. The calling of the marines constitutes permissible use of military assets for civilian enforcement. Notwithstanding the conduct of joint visibility patrols by the members of PNP and the Philippine marines, the Metro Manila Police Chief is the overall leader and it is the local police forces who are in charge at all times. Gonzales vs Abaya Ruling: Courts-martial are instrumentalities of the Executive to enable the President, as Commander-in-Chief, to effectively command, control, and discipline the armed forces .In short, courts-martial form part of the disciplinary system that ensures the Presidents control, and thus civilian supremacy, over the military. At the apex of this disciplinary system is the President who exercises review powers over decisions of courts-martial (citing Article 50 of the Articles of War) The Court Martial is part of the system to maintain Supremacy of civilian authority subject to review by the Commander-in-Chief Gudani vs Senga Ruling: When the President orders a military man the latter needs to follow the President above all others as his Commander-in-Chief because military men are subject to the control and authority of the president. The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is most crucial to the democratic way of life, to civilian supremacy over the military, and to the general

stability of our representative system of government. The Constitution reposes final authority, control and supervision of the AFP to the President, a civilian who is not a member of the armed forces, and whose duties as commander-in-chief represent only a part of the organic duties imposed upon the office, the other functions being clearly civil in nature. Civilian supremacy over the military also stops the notion that the military may bypass civilian authorities, such as civil courts, on matters such as conducting warrantless searches and seizure. The ability of the President to prevent military officers from testifying before Congress does not turn on executive privilege, but on the Chief Executives power as commander-in-chief to control the actions and speech of members of the armed forces. The Presidents prerogatives as commander-in-chief are not hampered by the same limitations as in executive privilege. The President could, as a general rule, require military officers to seek presidential approval before appearing before Congress is based foremost on the notion that a contrary rule unduly diminishes the prerogatives of the President as commander-in-chief. Maintenance if Peace and Order Section 5 of Art II The maintenance of peace and order, the protection of life, liberty, and property, and promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. the protection of the people against violence are the constitutional duties f the State and to bear arms is to be construed in connection and in harmony with the constitutional duties Chavez vs Romulo Right to Bear arms is a statutory right not a constitutional right. The license to carry a firearm is neither a property nor a property right. Neither does it create a vested right. Even if it were a property right it cannot be considered absolute as to be placed beyond the reach of police power. The maintenance of peace and order and the protection of the people against violence are constitutional duties of the State, and the right to bear arms is to be construed in connection and in harmony with these constitutional duties. Facts: President Gloria Macapagal-Arroyo delivered a speech before the members of the PNP stressing the need for a nationwide gun ban in all public places to avert the rising crime

55 | P a g e

incidents. She directed the then PNP Chief, respondent Ebdane, to suspend the issuance of Permits to Carry Firearms Outside of Residence (PTCFOR) Petitioner Francisco I. Chavez, a licensed gun owner to whom a PTCFOR has been issued, requested the Department of Interior and Local Government (DILG) to reconsider the implementation of the assailed Guidelines. However, his request was denied. Thus, he filed the present petition impleading public respondents. Issue: Whether the citizens right to bear arms is a constitutional right? Ruling: The right to bear arms cannot be classified as fundamental under the 1987 Philippine Constitution. Evidently, possession of firearms by the citizens in the Philippines is the exception, not the rule. The right to bear arms is a mere statutory privilege, not a constitutional right. It is a mere statutory creation Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protected by the due process clause of the Constitution. Thus, Maintenance of Peace & Order and the protection of the people against violence are constitutionsl duties of the State and to bear arms is to be construed in connection and in harmony with these constitutional duties. Petition is dismissed. Separation of the State and the Church Sec 6 Art II The separation of Church and State shall be inviolable. (firm) Constitutional Manifestations of the Separation if State and the Church Reinforced by : 1. Sec 5 Art III Freedom of Religion Clause On the matter of non-establishment of religion 2. Sec 2 (5) Art IX-C Religious Sec cannot be registered as political party 3. Sec 5 (2) Art VI no sectoral representative from the religious sector/ religious sect are not allowed in the party list system 4. Sec 29 (2) Art VI prohibition against appropriation for sectarian benefit - On the matter of appropriation of public funds Exception:

1. Sec 28 (3) Art VI Churches, parsonages


etc actually, directly and exclusively used for religious purposes shall be exempt from taxation except property tax 2. Sec 29 (2) Art VI - when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. 3. Sec 3 (3) Art XIV Optional religious instruction for public elementary and high school students 4. Sec 4 (2) Art XIV Filipino ownership requirement (60% owned) for educational institutions except those established by religious groups and mission boards (section shall not apply to schools established for foreign diplomatic personnel) Estrada vs Iscruitor (No compelling interest of the state involved) Ruling : it is indubitable that benevolent neutrality-accommodation whether mandatory or permissive is the spirit, intent and framework underlying the Philippine Constitution. Benevolent neutrality could allow for accommodation for morality based on religion provided it does not offend compelling state interest. Independent Foreign Policies and Nulearfree Philippines Sec 7 Art II - The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to selfdetermination. Sec 8 Art II - The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory. (NOTE: beneficial use of nuclear is NOT prohibited) Sec 25 Art XVIII - After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning military bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for

56 | P a g e

that purpose, and recognized as a treaty by the other contracting State. Tanada vs Angara Ruling: In its Declaration of Principles and state policies, the Constitution adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity , with all nations. By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered automatically part of our own laws. Pacta sunt servanda international agreements must be performed in good faith. A treaty is not a mere moral obligation but creates a legally binding obligation on the parties. Through WTO the sovereignty of the state cannot in fact and reality be considered as absolute because it is a regulation of commercial relations among nations. Such as when Philippines joined the United Nations (UN) it consented to restrict its sovereignty right under the concept of sovereignty as autolimitation. Sanctity of Family and Youth (non-intrusion of the government to family affairs) Sec 12 Art II - The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. Provisions as to protection of the mother Provisions as to protection of the unborn child Life of Mother vs Life Of the Child : life of the Mother prevails in case they are both id danger

Ruling: Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Equal access of opportunities to public service Sec 26 Art II - The State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law. Pamatong vs Comelec Ruling: This provision does not bestow a right to seek the presidency, it does not contain judicially enforceable constitutional right but merely specifies a guideline for legislative action. The provision is not intended to compel the state to enact positive measures that would accommodate as many as possible into public office. The privilege may be subjected to limitations. One such valid limitation is the provision of the Omnibus Election Code in nuisance candidates. Honest Public Office Service and Full (Transparency) Public Disclosure

Section 27 Art II The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. Section 28 Art II Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

Promotion of healthful Ecology Sec 16 Art II - The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. Oposa vs Factoran

57 | P a g e