University of San Carlos

Political Law Transcription

Constitutional Law

Judge E. Singco

JUDICIAL REVIEWWE always start with Judicial Review because we are suppose to construe and interpret the provisions of the Constitution, as was stated in our study of political law as well as constitutional law. Even in determining whether or not the SC has jurisdiction to take cognizance over a petition involving a question of constitutionality, the SC would always go into whether or not the requisites for the valid exercise of judicial review are present. Otherwise the SC would not touch on any issue of constitutionality. It is then very important for you to understand judicial review before we go to the specific provisions of political law.

As we can recall, judicial review is one of the powers of the court, the judiciary in general. Particularly because ultimately it is the SC that renders decision that would establish precedent, we have the SC exercising the power. Take note because at one time it was asked in the bar exam - cite provisions in the constitution that vested the power of judicial review in the judiciary; or there was a question on what is the expanded jurisdiction of the SC; or there was a question on what is the constitutional basis of the lower court declaring the law unconstitutional; or there was a question relating to whether or not the RTC can declare a law unconstitutional. Isnt it that all these questions can be answered by the concept of judicial review? So you have to understand the concept of judicial review. Judicial Power

Take note that judicial power as is defined under section 1, Article 8 is no longer limited to settling disputes, where you apply law and jurisprudence in a case involving a conflict of legal rights, or involving a conflict of obligations. Why? Because that judicial power has been increased, it expanded as to its concept. That judicial power is not only limited to settling disputes, but as well as determining whether or not there has been a grave abuse of discretion amounting to lack or in excess of jurisdiction. This involves an exercise of judicial review by the court. If this power is vested not only in the SC, but as well as such other courts that may be established by law, then it is understood that judicial review is exercise also by the lower courts. Can you cite as legal basis for the exercise of judicial review? You have that provision in section 4 of the same Article, where it provides that in the matter of reviewing whether or not a law, a Presidential Decree, a proclamation, an instruction, ordinance, an international agreement, a treaty, etc. is in consonance with the constitution, who has the power to review? It is the SC. That is part of their power, which is an exercise of judicial review, wherein you determine whether or not a law as valid having the constitution as your basis as your point of reference. If it is in consonance with the constitution, then it is valid. If it is contrary to the constitution, then it is null and void. And in which case, it is an exercise of judicial review. That is so far as the SC. In other words, there are two provisions then of the SC sec. 1, Article 8, and Sec. 4 of the same Article, in so far as the exercise of judicial review by the SC.How about the lower courts? Do they exercise judicial review; can they declare a law unconstitutional? The answer is yes, because the definition of judicial power has already been expanded to include the power of judicial review, which power is vested not only in the SC but as well as in all other courts that may be established by statutes we call them as statutory courts. Then you also have section 4. You recall, what are the decisions that will be reviewed by the SC? Those are decisions presumably of the lower courts because what will be reviewed if there is no decision rendered by the lower courts. It implies therefore that lower courts can declare a law unconstitutional if it is contrary to the constitution; or can review a law or an act of the government, however subject to the review by the SC. Therefore, lower courts do exercise the power of judicial review. What is the difference between the exercise of the power by the SC and by the lower courts? The decisions rendered by the SC will serve as precedents, they would serve as guidelines to educate the bench and bar so that in the event the same issue will be raised in the future, then the lawyers and the judges, including the public will be guided accordingly. But what about the lower courts declaring a law unconstitutional, what would be its effect? It is only binding in so far as the parties, dont stop there, with respect only to that particular case. Because a decision of a lower court cannot be used as precedent by a co-equal or much lower court. It is only effective in so far as determining the right and obligations of the parties with respect only to that particular case where the decision is rendered. That is why the SC said that while lower courts can exercise judicial review, they have to be exercised with prudence and utmost caution, because theirs is not binding against the whole world, it only binds the parties with respect to the case. Requisites of Judicial Review

It has been said that the court, the SC in particular, is the most passive among the three branches of the government. If its authority is not invoked, the court cannot inquire into the legality of the laws that may be subject of the complaint, or cannot inquire into the acts of the two other branches, because of the principle of separation of powers and because they are co-equal branches in the government. Because of this principle, this judicial review power of the court can only be exercised if the requisites are present. Then you go again to the basics the requisites of judicial review. Remember there must be an actual case or controversy, it must be raised by the proper party, at the earliest opportunity of time, and finally the issue of constitutionality must the ultimate issue to the extent that the main case cannot be decided on the merit until after the accidental issue of constitutionality will be settled. You have to master the requisites on actual case or controversy, and on the issue of proper party. Whenever a case is lodged for the SC, questioning the validity of the acts of the president for example, before the SC gives due course to that petition, they still have to look into whether or not there is indeed a controversy. Thereafter, they will check if the person filing the petition is a proper party. Because on the matter of the raising the issue at the earliest opportunity of time, usually it is always raised even before the issue the issue has ripen into a matter of judicial determination. That is not much of an issue. Or whether or not it is the lis mota. More or less it is always the very lis mota. Those two are not that of issue in bar examination. Actual case or controversy.

When is there an actual case or controversy? There is actual case or controversy when the issue is ripe for judicial adjudication. When is it ripe for judicial adjudication? When it involves legal questions like issues like whether or no the acts complained of are valid. When you say valid, there has to be a law as basis to say the least. Or whether or no the acts complained of are constitutional. So there is always a proviso of the constitution as a point of reference. In other words, the nature of the issue raised is justiciable ad not political. So if you ask questions relating to the rationale or reason behind the act, or the wisdom of the decision of the President or of the Congress, or the wisdom of the law passed by the Congress, these are issues that are political in nature, meaning they involve political discretion of the two other branches in the government. And under the separation of powers, being a full discretionary power of a particular branch, it cannot be a subject of a review by the court because it might amount to intruding into the discretion of a co-equal branch of government. That is why we said only justiciable questions may be looked into by the court, or more particularly by the SC, and not those questions that are political in nature. The only exception to that - even assuming that it is a full discretionary power of a branch and therefore as a general rule cannot be looked into or check by the courts in the exercise of judicial review - take note that because of the expanded jurisdiction granted to the court, that may be still looked into if only to determine whether there has been a grave abuse of discretion amounting to lack or in excess of jurisdiction. Case in point, Marcos vs. Manglapus. For example, in the matter of that case on whether or not the President can determine who of these people should be allowed entry into the country, as part of the residual power of the President being the Chief Executive, and therefore being a discretionary power of the president, exercised by an alter-ego such as the secretary of the foreign affairs should the SC look into that discretion when it is a political question? The SC said in the case of Marcos vs. Manglapus, even if it is a discretionary power that is not the issue. The court would not inquire whether or not he had that power. It is only whether the power is exercised within the bounds of the constitution because if it is exercised with abuse of discretion, that discretion is abused, then that may be still looked into by the court. That is the only instance that even political question may be looked into. Otherwise, only justiciable question are within the jurisdiction of the courts to look into in the exercise of judicial review. Ripe for judicial adjudication.

Another point that you should take note is that it must be ripe for judicial adjudication. Meaning, if there is no controversy yet, you are just anticipating that there might be a violation of your right then you cannot file a case because there has been no violation of any right yet which is ripe for judicial adjudication. In other words where the issue is still premature because the issue or your question has not ripen yet into a controversy for judicial determination, then the court must refrain from taking cognizance over such petition or cases because that would amount to intruding into the prerogative of the two other branches of the government. Take note on declaratory relief. Theres shouldnt be any violation of a right in a declaratory relief petition. Otherwise the court cannot take cognizance over the petition. When you ask, for example, for the court to intervene and determine the rights and obligations of the parties under a particular contract or law that is in question, can the court look into the matter? There is no violation of any right here because this is a requisite in this petition - when there is already a violation of right, then the court can no longer into the constitutionality of the law in question under which the rights and obligations of the parties are supposed to be construed and determined. This is an exception. We said that the issue should not be premature; otherwise the court cannot take cognizance over the petition. But you have declaratory relief. Like for instance you want to know what are the rights and obligations of the parties under the law, but you question the constitutionality of that law because if the law will be applied, the rights of either party will be violated. So you are now asking the court that before that law will be implemented in determining the rights and obligations of the parties, you first tell us if this is constitutional. This is not asking for an opinion from the court in determining whether the law is constitutional or not. You are simply trying to ascertain what are the rights of the parties under that law which is being questioned as to its constitutionality, or under that contract which validity is being questioned. Does the court has jurisdiction; is there an actual case or controversy? The SC said in a Declaratory Relief where there are no rights violated yet, there is an actual case or controversy. Because after all, whatever decision that will be rendered by the court will determine the rights and obligations of the parties under that law. Then the issue on if it must not be premature, it must not also be stale. When there is no more controversy, it ceases because of a supervening event that had happened after the filing of the petition. In other words, the controversy must not only be at the time of the filing but it must be continuous until the issue is resolved. Because it is possible that at the time of the filing, there was a controversy but it was over-ran by the subsequent events making the issue moot and academic, if not bahaw na - there is no more controversy. Like what happen in one the cases where there was a question on whether or not the declaration of the state of rebellion by the President is constitutional. While that case is pending in the SC, there was a lifting of the declaration of the state of rebellion. And so the Solicitor General moved for the dismissal of the petition on the grounds that there is no more issue to be resolved because there is no more state of rebellion. And SC dismissed the petition. That was the Lacson case. And there was this case of Randy David vs. The Executive Secretary or vs. President Arroyo before she was dropped on that case. Do you recall when the President declared a state of national emergency, and what happened thereafter, they questioned the validity or the constitutionality of the President declaring the state of emergency. While the case was pending, it was lifted. And was it dismissed? The SC did not dismiss it. What is the difference? Because apparently while it was lifted, there remains still the controversy because there were question on the validity on their arrests, the arrest was made in pursuant to a declaration of the state of national emergency. So the controversy continued, it never became moot and academic. Unlike in the rebellion case, there were no cases relating to the declaration of a state of rebellion. There was no more issue because it was already lifted. In that case of David et al, the SC said that the mootness of the issue is not a mathematical formula. To dismiss the case and for the court to refrain from reviewing the act which is clearly a violation of the constitution. Case in point which is a classical case Salonga vs. Hermoso. Remember the Salonga case, where Salonga asked for travel clearance to go abroad for medical treatment, however, he was not given any clearance because according to the government, he has a pending case of rebellion. So he went up all the way to the SC, questioning the actuation and as to its constitutionality of government in barring him from going abroad. While the case was pending, the rebellion case against him was withdrawn by the fiscal office, or in other words there was no more case, which was the reason for the not giving him the clearance to go abroad. So the Solicitor General moved for the dismissal of the petition on the ground that there is no more issue, because he was already given clearance because the case was already been dismissed. What did the SC say? No. Why? Because from the facts of the case, it was clearly established that there was a patent violation of the constitution. And that it is possible that this will be repeated again in the future, and yet it would evade any review from the courts. Take note of the requisites then, that even if the issue has become moot and academic, the SC is not barred or precluded from looking into the matter. The mootness therefore of the issue is not just a formula to move for the dismissal of the case. You have to look into the requisites like whether there is patent violation of the constitution, and that there is a possibility that this will be repeated again in the future and still the court cannot review the matter. Take note that judicial review is not just reviewing the validity of the law but as well as to comply with the symbolic function to educate the bench and the bar and to provide guidelines, precedent, and principles so that in the future similar issues will be raised then they will be guided accordingly, including the public not just the lawyers as well as the judges but also the public. I think there are also some subsequent cases. Remember the case involving the MOA, where they ask for the dismissal of the petition the memorandum of agreement that the government had entered into with the MILF group. And the Solicitor General Devenadera was saying that the petition should be dismissed because the President had made an assurance that she would not sign that memorandum of agreement and therefore would not give any effect to that MOA which constitutionality was being questioned or assailed. Notwithstanding, the SC proceeded in determining the constitutionality of the validity of the MOA for the same reasons as it was enunciated in the case of David et al.I dont what happened to that declaration of martial law in Maguindanao that was also questioned and it was lifted later. I do not know if the SC has decided it on the merit because you have to understand that there are now cases filed against the Ampatuan. And the validity of their arrest is based on evidence that were procured during the time martial law was declared. BROWN OUT Oh my goodnessI wondered because I was looking for the Ampatuan case. It is still pending thats why we cannot find that in the website. They are questioning the constitutionality of the declaration of martial law in Maguindanao. Even if it was lifted already, will the issue become moot and academic? The controversy did not stop from the declaration of the martial law. There were consequences of the declaration of the martial law. Do you recall they made some warrantless searches and seizure? And later these evidences that were procured were used as basis for the filing of cases against the Ampatuans. If they go into excluding the evidence that was obtained then they have to go into the constitutionality of martial law because that was the basis for the warrantless arrest and seizure. The issue itself, the main case may have become moot and academic but it continues because of the consequences of the declaration of the act itself, or because of the enactment of the law itself. My point, guys, is that if you are given a case like that, you make sure if you can apply either the case of Lacson or the case of David et al. But the safer there is to say that if the issue is of transcendental importance or of paramount public interest, even if the issue had become moot and academic, the SC is never precluded from looking into the matter and establish precedent by decisions that they would render. Going back to the requisites of the exceptions to the mootnes which the court may not look into with the constitutionality of the act complained of - when there is a clear violation of the constitution, and the issue is of transcendental importance or of paramount public interest and that it is capable of repetition and yet it evades a review from the court. Raised by the proper party.

Another point to take note is on the next requisite of proper party. Who is a proper party in political cases like this involving issue of constitutionality? Usually, a proper part is one who stands to benefit if the case is decided in his favor. If it involves private rights, he must have a cause of action and he stands to benefit or he suffers, depending on the decision that would be rendered by the court either against him or in his favor. Thats why sometimes we consider that as one having a real interest in the outcome of the case that is a proper party. Is that applicable in cases of constitutionality? Should one have that real interest as defined by civil law involving private rights so that if he cannot establish that, then the case should be dismissed because of lack of cause of action, or because simply put, he is not a proper party. Take note that in cases involving judicial review, what is involved is not a private right, it is only incidental. Because whatever will be the decision, right now you might be personally affected, but the decision will not only apply to your personal right but as well as the rights of everybody - it involves usually a public right. And this was emphasized in the case of La Bugal Blaan - remember versus Ramos, where there was a question on the constitutionality of government entering into a service contract agreement with a foreign corporation to engage in the operation of mining. Di ba under the constitution, control over the exploration and exploitation of natural resources is with the state? And if any citizen gets involve in this kind of business, there are only three instances, and the state has to enter into an agreement either with a citizen of the Philippines, or with a qualified Filipino corporation. What are those agreements as provided for by the constitution? What are these? It has to be a profit-sharing, co production, do you remember In other words, it is clear under the constitution that the state may only enter only into such kind of agreements involving the exploration of natural resources with a Filipino citizen, or a qualified Filipino corporation, and not with a foreign corporation. In that La Bugal Blaan, the group that questioned the validity of the agreement that the government had entered into with an Australian corporation - because practically, this foreign corporation is allowed to explore the natural resources through mining. And so before the court looked into the constitutionality of the issue that was raised, they had to determine whether the La Bugal Blaan is a proper party to raise the issue of constitutionality. Firstly, they are not involved in mining competing with this foreign corporation; they do not owned the lands subject of the exploration of the natural resources. Should the case be dismissed because after all they will not be directly injured? But take note this involved a public right. If in the vent decision will be rendered either for or against the petition, it will not only affect the petition but it affects the whole country because it involves the constitution and its application, and the exploration of the natural resources. So the SC has emphasized that in cases like this, this involves a public right and therefore you do not apply the definition of a proper party in a civil law cases where only private rights are involved. You need not have a real interest in the outcome of the case as long as you have the legal standing then you are considered as a proper party. In fact, some petitions may not be directly involved... it is only a public in general of which he is a part. In other words, in this jurisdiction, who is a person who has a legal standing to question the constitutionality of a law? It is one who is directly injured by the act or law complained, or in the imminent danger of sustaining injury. Do you know about facial challenge on the constitutionality of an act or a law? Where even if a party is not may not be directly personally involved, the court may still look into the matter because it will affect the public in so far as the exercise of the rights guaranteed by the constitution. But take note on the facial challenge of constitutionality. This usually involves freedom of expression. It cannot apply to all other cases. Even if not only him that is personally affected, it might affect also the other persons who may be situated in the same circumstances in the future, the court may still look into the matter. But it is limited only to cases, involving the rights of the freedom of expression like your freedom of speech, right of assembly and petition to government for redress or grievance, the court may still look into the matter.

Going back to the principle of direct injury. In this jurisdiction, as a general rule, what we apply is direct injury principle. The injury that is being referred to may either be actual or potential one who has sustained injury or in the imminent danger of sustaining injury is one who is considered a proper party.You have a case of De la Hoya vs. PCGG, where they are going to sell the jewelries of Imelda Marcos in a public auction. Can you question as a citizen of the Philippines whose taxes may have been used in the purchased of these jewelries of Marcos? Can you ask for an injunction to stop the auction? Or you are a lover of jewelries, you dont want them sold because you cannot see them anymore it would be better they be put in the museum so that you will have a chance to look at them. Can you ask for a writ of injunction to enjoin the sale? In that De la Hoya, it does not involve jewelries of the Marcoses, it involved some articles of art, paintings, etc which a group of artist wanted to stop the public auction. Where they considered proper parties in that case? They were not because it the even they would be sold, they will be not prejudiced because they do not own them. If there is any one who should question the validity of the public auction, it should be the Marcoses who claimed to be the owners of the works of art.

As a general rule therefore, in this jurisdiction, what we apply is direct injury principle. The injury could be actual, as Ive said, or it is potential. Do you recall that case of Oposa vs. The Secretary of DENR (Factoran)? Do you recall that the one who filed the petition to question the policy of DENR in granting concessions for logging were minor children of Atty. Oposa, not Atty. Oposa himself but he represented his children. They are minor children they are not engaged in logging, they do not own these forests but why were they considered as proper party in this issue of constitutionality? They are not injured yet because after all there are so many trees. But if this will not be stopped, and they will be no planting of trees, what will happen? Remember that these children are the inheritors of the patrimony of this country. What natural resources, or timberland, or forest will they inherit if they all will be cut down, if there is no regulation to the grant of concessions of logging? So it is potential that they would certainly be injured if that will not be reviewed by the court. Take note of what is the basis of this. It is based on the inter-generational responsibility to preserve and maintain a healthful and balanced ecology. That is a right not part of the bill of rights, but according to the SC it does not make it less important than those rights enumerated in the bill of rights, because they are so stated, not in Article 3, but in Article 2 as part of the Declaration of Principles and State Polices. Take note what is important here in determining whether he can be a proper party if he is an ordinary citizen, a taxpayer, a voter, a member of Congress, or just a member of a concerned citizen organization.

As a citizen, we follow the direct injury principle. Because of the presumption of constitutionality and validity of laws, the court cannot on their own declare them as contrary to the constitution and therefore null and void. So that should there be anyone who should question, he must be one who has sustained injury or is in the imminent danger of sustaining injury. Except in the case of facial challenge of constitutionality involving the freedom of expression. How about a taxpayer? Can a tax payer, if he is not directly injure but he is just a tax payer, question the validity of any law that may be passed by Congress or any act of the President? Take note, as it was asked in the bar exam, the requisites to have a legal standing as a tax payer to question the constitutionality of the act of government, or of the law. It must involve, first and foremost, a disbursement of public funds - but not just any disbursement. Otherwise, a lot of cases will swamp the court every time the government expends money. It will be brought to the court and question as to its constitutionality. It is not just involving disbursement of public funds. What else? It must be contrary to law. Meaning, its anomalous that would amount to misappropriation or misapplication of public funds to the prejudice of a taxpayer.Second. When it involves taxing laws. Tax impositions that are exorbitant that would amount to depriving the tax payer of his property without due process of law.

That is so far as the Tax Payer is concerned. Two instances when it involves disbursement of public unds, etc and when it involves taxing laws.

How about a voter; when is he a proper party? A voter is a proper party when it involves his right to vote and questions on the constitutionality or validity of election laws. Aside from that guys, you should know how about a member of Congress. When is he a proper party? Do you remember that case of Francisco et al vs. The House of Representatives? You have that case of Drilon one E.O. 464. You have Pimentel relating to the Statute of Rome. These ar emembers of Congress. When are they considered as proper parties? when the questions or issues raised or the law that they are assailing as to its constitutionality involves the prerogatives as members of Congress. If there is an issues that impairs, if there is a law is complained of, it impairs or prejudices the prerogatives as members of Congress then they are considered as proper parties. Remember that case involving Drilon questioning the on the constitutionality of that executive privilege that was extended to the cabinet members E.O. 464. Why does this impair the prerogatives of the members of Congress? Take note that they pass laws by.. where do they get the information in making laws? Through legislative inquiry. It is the legislative inquiry that was affected by the extension of the executive privilege because it virtually deprives members of Congress of the source of information for purposes of legislation. What happens if they want to know some information from a cabinet member? Because of the executive privilege, the cabinet member would not appear before legislative inquiry and therefore depriving not only the people in general on the right on information on matters of public concern, it also affects the source of information for members of Congress in the enactment of a law. That is basically the reason why it was questioned by Drilon, and Drilon was considered a proper party. In the case of Pimentel vs. Executive Secretary. This was on the issue of asking for the Statute of Rome to be submitted to the Senate for review for purposes of concurrence. Do you recall? The establishment of International Criminal Court of Justice to which we were a signatory then at the time of President Estrada. When Arroyo became the President, she withheld the submission of that copy, that Statute of Rome, that treaty, to the Senate for purposes of review so that they can concur or not concur such treaty because of the threat made by USA that should we pursue our being a signatory to that treaty, we might loss military or US aid from America. So it was submitted. Pimentel then question the propriety of the act of the President not submitting it to the Senate. Take note that it was not only Pimentel who questioned the validity of the act of the President. It was also questioned by Akbayan; it was also questioned by a member of the House of Representatives, Eta Rosales. But among those who was considered as a proper party - it was Pimentel. Why? Because after all, under the Constitution, a treaty can only be effective upon concurrence by 2/3 of the Senate. Not Congress, but only the Senate. Usually, it is being submitted to the Senate for review, so that they can make recommendations to the President whether or not to ratify the treaty that may have been negotiated with by the President or her representative. While the SC said that Pimentel was a proper party being a member of the Senate, Eta Rosales was not considered a proper party because after all she is a member of the House of The Representatives. Her prerogatives will not be impaired by not submitting a copy of the treaty to the House of Reps. Why not? Because they do not concur treaties that may have been negotiated by the President. Eventually, the SC declared that it is not for the Senate to compel the President because after all, it is discretionary on the part o the President to ratify or not to ratify the treaty being the Chief Executive. In so far as concerned citizens group or as an organization, when is it a proper party? Do you remember the IBP questioning the constitutionality of the deployment of the military to shopping malls IBP vs. Zamora. And it was dismissed by the SC. One of the grounds was that IBP is not a proper party. What is the function of the IBP to make sure that the rule of law is observed, right? But that is not just an interest of IBP. That is practically an interest of everybody. So they basically just shared that interest which is common to the general public. In other words therefore, their interest in the outcome of the case is not substantial neither personal. That is why the SC declared that IBP is not a proper party as an organization. But then again, you take note of the case of Kilosbayan vs. The Executive Secretary, with respect to the appointment of Justice Ong to the SC. Di ba Justice Ong of the Sandiganbayan was supposed to be promoted as justice of the SC, but the Kilosbayan asked for an injunction, a restraining order, from the SC to enjoin the executive secretary to issue the appointment papers which could be the basis for the taking of oath of Justice Ong. There was a question on the propriety of the Kilosbayan filing the case in the SC questioning the qualifications of Justice Ong. They were saying, what if, for example, Justice Ong will be disqualified? Do you mean to say that Kilosbayan will be the one to replace Justice Ong, and be appointed as Justice of the SC and so you will have a Justice Kilosbayan? In other words, they dont have personal interest. The injury could not even be substantial. Anyhow, the SC said, here the issue raised is of constitutional significance. It involves qualifications of a justice that is required by, no less than, the constitution. What is the qualification required by the constitution? That to be a justice of the SC, you have to be a natural born citizen. And the issue that was raised by the Kilosbayan here is this Justice Ong is not a natural born citizen. On the possibility that you will appoint someone who is not qualified as regards to citizenship, definitely the interest is not just general. The SC said that the issue that is being raised is of constitutional significance thats another ground for raising the issue of constitutionality and the organization being a proper party. Because before that, we have Kilosbayan vs. Morato. That case was dismissed. Remember questioning on the franchise that was granted involving the operation of Jai Alai because it was immoral, etc. Do you recall that the case was dismissed because the interest of the Kilosbayan in this case was shared among the public in general. It is not substantial neither personal. But in this case of Justice Ong, it is an exception. The SC entertained notwithstanding that Justice Ong passed the JBC screening. Thats why the SC said that in the role of JBC in the appointment of judges and justices, that they can only do some initial screening, but it will not preclude the SC to look into the qualifications of a judge or a justice if there is allegation that it is contrary to the constitution. There is another thing. Is a government a proper party to question the validity of its own laws? Ikaw na ang implementor, ikaw pa jud ang mo question. Would it not be inconsistent on the part of the government? You pass a law and then you question the validity or the constitutionality of that law. Take note, classic case, you have People vs. Vera. You also have the case of the carabao IAC vs. Ynot, where the SC said that with more reason that the government should make sure that only valid laws should be enforced. They are not precluded, in other words to raise the issue of constitutionality of laws that may be implemented or enforced by the government. Another point that you should take note guys is that this matter of the issue of proper party may be set side by the SC in its discretion as a mere procedural technicality where the issue involved is of transcendental importance or of paramount public interest. Where there is a clear violation of the constitution and is capable of repetition however evades review. Then in which case, even if you are not directly injured or may not be in the imminent danger of sustaining injury, that issue of proper party may be just set aside by the SC if the issue raised is of transcendental importance or of paramount public interest. And in many cases, the SC entertained petition on constitutionality of acts of the President, or laws passed by Congress, notwithstanding that he has no personal interest in the outcome of the case, simply because the issue raised is of transcendental importance. That is always the justification of the SC. But that is a discretion of the SC, not by the lower courts. In the lower courts, he has to be a proper party, and what you apply is the direct injury principle. Raised in the earliest opportunity of time.

Another requisite is on the issue that it must be raised in the earliest opportunity of time. If you are the complainant, when is it the earliest opportunity of time to question the validity of law or the act of government in general? Then it would be when you file your complaint, which is the pleading. You have to raise that in your complaint. You have to allege, in other words, that matter in your complaint. Otherwise, should you fail to raise that in your complaint, you may not be allowed later to present evidence to prove that the act complained of is unconstitutional because you can only prove facts that are alleged in your complaint. What is not alleged, you may not be allowed to present evidence. If for example, you only raised that for the first time at the time you file your motion for reconsideration after the case has been decided against you, and so you raised that for the first time in your motion for reconsideration. Would that be the earliest opportunity of time? Certainly not. And most especially, you didnt raise that in your complaint, you didnt raise that in your motion, can you raise that for the first time on appeal? The answer is no, as a general rule, because of the requirement that it has to be raise at the earliest opportunity of time. If you didnt raise that in your complaint, then you cannot raise that for the first time in a motion for reconsideration, much less, in an appeal. But take note that in a case where you were charged administratively in the office of the Ombudsman, you never questioned the constitutionality of R.A. 6770 (Ombudsman Act) as regards to the jurisdiction of the Ombudsman. Remember, it confers jurisdiction to the Ombudsman office to investigate cases involving public officers. Now you are being investigated by the Office of the Ombudsman, but you never questioned the constitutionality of the law authorizing the Ombudsman to investigate you. Until finally, you get convicted, sentenced to dismissal from the service. Can you raise for the first time on appeal the constitutionality of R.A. 6770 in the CA where you are appealing the judgment of conviction? Because if the Ombudsman Act is unconstitutional, then the proceedings conducted by the Ombudsman is null and void. Is that the earliest opportunity of time; can the CA entertain that issue of constitutionality? The answer is yes. Why? Because the Ombudsman cannot rule on the constitutionality of R.A. 6770. The proper forum is the court. Remember that they do exercise a quasi-judicial function, but it is not a court, and therefore, cannot exercise judicial review and rule on the constitutionality of the law in question. So therefore, the earliest opportunity is when the case is filed in court. In this case, when the appeal is filed.We said, if it is not raised at the earliest opportunity of time, can you raise that for the first time on appeal? As a general rule, you cant because of the principle on raising the issue at the earliest opportunity of time. Exceptions. These are the things that you have to take note. In criminal cases? Yes, anytime, even for the first time on appeal because in this jurisdiction, where there is no law punishing the act or the omission, no crime is committed. So if the law is declared as unconstitutional, then it would be as if no crime is committed. Because no law punishing the act, no crime. No crime, no liability.In civil cases. In civil cases, it may be raised if the main case cannot be resolved without first settling the issue on constitutionality. In other words, you are asking for an injunction but the injunction hinges on the constitutionality of the law that you are raising. It depends on that law whether or not it is constitutional. If the law is constitutional, then you are not entitled to an injunction in so far as applying the law. But if the law is unconstitutional, then you are entitled to an injunction. So ultimately therefore, your relief which is the main case is dependent on the issue of whether or not the law you are questioning is constitutional. In other words, only when the case cannot be resolved without first resolving the issue of constitutionality. Where the issue of constitutionality is the lis mota of the case.Finally, when the issue is jurisdiction? Anytime. It can be raised for the first time on appeal. Because if the law for example, that confers the authority to hear the case, or that grants that authority, or that grants that right is unconstitutional, then it is null and void. Then the subsequent proceedings applying the law are likewise null and void. That is the reason why anytime, even for the first time on appeal, you can raise the issue of jurisdiction where there is a question of its constitutionality. Must be the lis mota of the case.

On the issue of that the matter must be the lis mota of the case. Because of the principle separation of powers that the three branches are co-equal, as much as possible the courts should not intrude into the discretion of Congress enacting the law, or intruding into the discretion of the President implementing the law that is presumed to be valid. In other words, if there are other grounds by which the case can be disposed of or resolved, by all means the court must avail of these grounds without touching on the issue of constitutionality. Like, the meresi principle such as the estoppel principle. After enjoying the benefits, now you are questioning as to its constitutionality. You are now barred from raising the issue of constitutionality, under the principle of estoppel. Or because the court does not have jurisdiction over the matter; or because the person is not the proper party; or it is still premature; or the issue has already become moot and academic. Because of the presumption of the validity of laws, the courts, as much as possible, should not intrude into the discretion of the two other branches of the government. JUNE 5, 2010Just briefly, we explained, that before the courts, more particularly the SC takes cognizance over a petition for any question of constitutionality, the four requisites must be complied with. Although there are some exceptions where some of the requisites may not be established and yet the SC may still take cognizance over the case especially when the issues raised are of transcendental importance or of paramount public interest, or recently in the case of Kilosbayan, when it has its constitutional significance. Can the lower court like RTC declare it as unconstitutional? Legal effects of the declaration of unconstitutionality.

Now, in the event the law is found to be contrary to the Constitution, the question is as it was asked in the Bar exam, can the lower court like RTC declare it as unconstitutional? There is no question as to the SC declaring it as unconstitutional. But as far as the lower courts, we explain, because judicial power definition has been expanded, to include judicial review, even lower courts may review the constitutionality of an act complained of on the basis of a constitutional provision. And that of course includes a declaration of unconstitutionality in the event it is found to be contrary to the constitution. But take note of its legal effect. The moment a law is declared unconstitutional by the lower court, what would be its legal consequence? It depends. If it is appealed to the Sc, then its declaration of nullity is not yet final. It is still subject to review and modification by the SC. Because ultimately, it is where the Sc to decide on the matter. After all, decision s of the lower court are subject to review by the SC, especially when it involves constitutionality. But what if the judgment is not appealed by either party? What will happen to the judgment? Then it becomes final. So there is no way that the Sc can review it. What would be then the legal consequence of the finality of a decision of a lower court declaring a law or an act complained of as being contrary to the constitution? Does it make the law unconstitutional against the whole world? Its only, has its legal effects with respect to the parties in relation to the case that is being decided by the lower court. In other words, even if it involves the same parties, however, different case this time because of a different date, the same act is complained of. The decision of the lower court in that particular case cannot apply in subsequent cases even if they involve the same issues, the same parties because the finality of the decision of a lower court is binding only in so far as the parties with respect to the case. Like for example, there are questions relating to, what if the ordinance is declared unconstitutional by the RTC, involving the parties and it has not been appealed. Remember the case involving the ordinance relating to the towing of illegally parked vehicles. Do you know that one time that was questioned as to its constitutionality? And in fact the RTC, one of the branches of the RTC here in Cebu City declared it as unconstitutional for being violative of due process of law. There was a declaration to the effect that it was practically the taking of a property without notice or hearing or without due process of law. Unfortunately, the city hall failed to appeal if they appealed the decision declaring the ordinance unconstitutional; they failed to pay the proper filing fees. The judgment in that case became final and executory. There was an order for the city hall to return the vehicle to the owner. My question is, what if the next day, the same vehicle was stalled, and so another complainant files a case questioning the constitutionality of the taking of his vehicle by the city hall through this towing company. Can he invoke the decision of that lower court involving the same parties, himself and the city hall, as a legal basis for getting back his vehicle from the city hall? The answer is no, because in so far as the decision of that lower court is concerned, it is only binding in so far as the parties with respect to the case, not to a subsequent case or subsequent cases even if they may involve the same parties and the same issues. Declaration of Unconstitutionality by the Supreme Court

How about if it is the SC that declares a law as unconstitutional. What would be the legal effect? But before going into that, how does the SC reach a decision to declare a law unconstitutional? How many votes is needed, in other words, to declare a law unconstitutional? Majority of the members of the SC who actually participated in the deliberation, on the question of constitutionality with respect to a particular case. Meaning, if you speak of majority, if there are 15 justices attending the deliberation, how many votes is needed in order to declare a law unconstitutional? What is majority of 15? Majority simply means more than , plus 1, 50 percent plus 1. What is 50% of 15 , plus one? 15 divided by two, plus 1. It is 7.5. But there is no 7 and .5 or persons. So you round it off to 7, plus 1. You need 8 only to declare a law unconstitutional. So dont say only 5 is needed. The precise answer to the question as it was asked in the bar exam is majority. So if there are 15, you need 8; if there are 14, you need still 8. If there are 13, seven. If there are 12, seven. If there are 11, six. If there are 10, six. If there are 9, five. If there are 8, five.

If there are 7? Is there a quorum if there are only 7 justices attending the session? If there is no quorum, can they legally deliberate? Of course not. There will be no deliberation at all. So it has to be at least attended by 8, which is the quorum majority of 15. Otherwise there cannot be a deliberation.If you say majority of those who actually participated in the deliberation, that is on the assumption that there was a quorum. And by quorum we mean the number of justices who should be present to legally transact business, which is under existing law and jurisprudence, it is practically majority, which is of the totality of the members, plus one.

What would be the consequence if the required majority is not obtained? Like there are 15 justices but you were not able to get 8 , there were only 7 who voted as to the unconstitutionality of the law. What would happen to the appeal, questioning the constitutionality of the law? The consequence there is that the validity or the constitutionality of the law will be sustained. So the appeal will be dismissed, for failure to muster the required majority votes. That could mean the sustaining of the validity or the constitutionality of the law.Consequences the moment the law is declared unconstitutional.

Take note of the other consequences the moment the law is declared unconstitutional. You have two views on this, but you are more familiar of the modern view. The traditional view is that the law is not a law at all. As if that law never existed. So it confers no rights, imposes no obligations, affords no protection, creates no office. It would be as if the law was never passed. In this jurisdiction, what we follow is the modern view. We simply ignore the existence of the law and thus we do not apply the law. It may not be declared as unconstitutional we simply just ignore it. And if there are other legal basis that you could resolve the case, then you resolve the case on those grounds. You dont touch on the constitutionality. But in the event it is declared unconstitutional, you treat the law as voidable. In the traditional view, it is void. But under the modern view. you cannot just ignore the operative acts at the time when this law was still in force. So you consider the law merely as voidable it is valid until it is declared a nullity. The nullity is reckoned from the time of its declaration by the courts. Only the courts can declare laws as unconstitutional and therefore void, reckoned from the time of the judicial declaration. NATIONAL TERRITORY

As we explained before, political is the study of the state. And if we are going to talk about the state, we are going into the elements of the state. What are the elements or requisites of the state? We have people, territory , government, and sovereignty. On the basis of the 1987 Philippine Constitution, let me start with the definition of the national territory, territory as one of the elements of the state. If you can memorize, the better for the purposes of topping the bar exam. What consist or comprises the Philippine national territory?It comprises of the Philippine archipelago with all the islands and waters embraced therein, including all territories over which the Philippines has jurisdiction and sovereignty, consisting of its terrestrial, fluvial and aerial domains. And then you have the waters around, between, connecting the islands, regardless of their breadth and dimensions, they form part of the internal waters of the Philippine territory. At one time, it was asked in the bar exam such provisions in the constitution that mention about the adoption of the archipelagic doctrine. You have to understand first what an archipelago is because archipelagic doctrine comes from the word archipelago. Ours is an archipelago. What is an archipelago? You go back to Article 46 of the UN Convention on the Law of the Seas. It is defined as a group of islands including parts of the islands, interconnecting waters and other natural features, which are closely interrelated that such islands, waters and other natural resources form an intensive geographical economic political entity, or to have historically regarded as an archipelago. In other words, because there are two actually definitions of an archipelago, one is a body of water studded with several islands; or you have islands or group of islands surrounded by the sea waters. What we adopt is the former. Instead of treating these islands as separate and independent from each other, by adopting archipelagic doctrine, we treat all these islands and waters surrounding the islands as one integrated unit, as if they are not separated by the sea waters. Going back to my question, what provisions in the constitution that mention or adopt the archipelagic doctrine? - First paragraph of the definition of the nation territory. It says that the Philippine national territory comprises of the Philippine archipelago with all the islands and waters embraced therein. In other words, the islands and the waters are not treated as separate entities. They are treated as one integrated unit as if they are not separated by sea waters. You treat the territory as one integrated unit instead of separate islands. The other provision is the last paragraph of Article 1, which says the waters around, between, connecting the islands, regardless of their breadth and dimensions, they form part of the internal waters of the Philippine territory. In other words, instead of treating the portions of the sea waters separating the islands as international waters, because they are beyond the 12 nautical miles from the low water mark from these islands, they are now being considered as just simply internal waters. They are treated like canals, swamps or rivers within an integrated territory. An archipelagic state means a constituted wholly by one or more archipelagos and may include other islands. How did we acquire theses islands comprising the archipelago. Basically, we acquire them by cession, transfer, or by treaties, except for Batanes islands , which we acquired by long occupation and possession. We also have other islands now recently claimed by us as early as in 1958 before Batanes islands. In 1958 we have Kalayaan island as part of Spratly islands or the freedom islands. And then we have the Scarbarogh shawl.

Rewind. We acquire these islands comprising of the archipelago by cession, or by transfer, or by treaties. Others are acquired by long possession, others are acquired by discovery, terra nullius that is the Scarbarough shawl. Others are acquired by discovery, by Tomas Kloma that is the Kalayaan islands group. Going back to the main archipelago. By virtue of the Treaty of Paris, where Spain transferred sovereignty to US over the Philippine territory. You have the delineation, the longitudes and latitudes being defined by the Treaty of Paris, which we adopted in the 1935 Constitution as well as in the 1973 Constitution, and presumably also in the 1987 Constitution. And that has been amended or added, by adding more islands by virtue of other treaties which US had entered into, like the Treaty of Washington, there was the treaty that Us entered with Great Britain, the British Treaty that was in 1900 and then in 1930. You added how many other islands you have Cagayan, Sulu, Cebu, Monkey islands and the Turtle islands. So we have all those islands comprising the Philippine archipelago. And then later in 1958, a certain Tomas Kloma allegedly found the Kalayaan islands as part of the Spratlys islands. Where do you find the Kalayaan islands, by the way? Why am I emphasizing on this guys is because there is a Republic Act 9552, the archipelagic baseline that redefines the Philippine national territory which until now is being questioned to the SC by Harry Roque, et al, questioning the constitutionality of this law because it might in effect, amend the definition of the national territory by ordinary legislation. Where is Kalayaan islands? Do you know that it is only consist of one bararangay. It is classified as 5th class municipality. It is near Palawan. And where is now the Scarbarough Shawl? It is in the northern part in the Zambales province. If you follow the international law relating to the determination of territorial seas, then you are suppose to determine it from the low water mark of each island. If you are to treat them as separate islands, like separate continents, then you have to determine the normal baseline from the low water mark of each island. We cannot afford that. Other wise, we would be creating pockets of international waters within, and thats when we adopt the archipelagic doctrine. Instead of adopting the normal baseline, we are now adopting straight baseline method. What is straight baseline method? It is where you determine the outermost points of the outermost islands and connect them with a straight line. There are many countries claiming Spratlys islands you have China Vietnam, Taiwan, Malaysia, you have Brunei. The problem with China, Taiwan and Vietnam is that they are claiming the whole archipelago as belonging to them. Other countries claiming because they are claiming certain reefs like Malaysia and Brunei. We are only claiming Kalayaan islands. Pila ra siguro ni ka square meters, square miles or square kilometers - .79 Square kilometers. Maayo na lang na kay sa wala. That is because we have to understand, if that is part of the Philippine archipelago then we have to consider them as the outermost island, outside of Palawan. You determine then the outermost point of the outermost island. So if this is the outermost point of the outermost island, you just dont make a straight line because this is what you will do It would look like a rectangle rather than a triangle because you are to draw a straight line to connect the outermost point of the outermost island. You are supposed to connect the outermost points of the outermost islands by a straight line. Draw a straight line connecting the outermost points of the outermost islands. You have for example the Scarbarough Shoal in the north, near Subic Bay. It is a triangular reef. then you have to include that as the outermost point. Imagine the sea water that you will be claiming as part of the territorial seas. Because the waters found inside are internal waters. The sea waters would be from the low water mark of the outermost islands of 12 nautical miles. Scarbaroguh Shoalis also known as the Scarbarough Reef, or Panatag Shoal, or in Chinese it is known as wang nyan dao. It is found in the South China Sea, part of the province of Zambales. A shoal is a triangle chain of reefs and islands but mostly rocks. It is found 123 miles West of Subic Bay. The basis of our claim is terra nullius and the fact that they are within the 200 exclusive economic zone. If you are asked, what is the legal basis of our claim over the Scarbarough Shoal terra nullius, meaning no body owns it, so because nobody owns it and we found it first, then we must be the owner. If you follow the archipelagic doctrine, you adopt the straight baseline method. So even if they are far from the main archipelago, the sea waters separating the main archipelago from the Scarbarough Shoal or from the main archipelago from the Kalayaan islands are considered as internal waters. Of course, other countries are complaining against it. They want the Philippines to define clearly and properly the extent of its archipelagic waters. They say alkanse mi ninyo, you have several sea waters separating the islands you are claiming as internal waters already, and you still claim sea waters outside of these islands up to 12 nautical miles. So we are warned to define our archipelagic waters. And thus, the passage of R.A. No. 9552. It redrew the countrys baseline to comply with the UNCLOS requirements for archipelagic state. In the process, it excluded the disputed Kalayaan Island Group, as well as the Scarbarough Shoal from the main archipelago, and just simply classify them as regime of islands. They are now just simply considered as regime of islands. They are excluded from the baseline. So when you determine territorial seas or maritime domain, they are excluded from the computation. The national territory constitutes now like a triangular delineation which includes large areas of waters within 600 miles to 1200 miles rectangular enclosing the Philippine archipelago as defined in the Treaty of Paris. So what happens now? It becomes now rectangular because we are now excluding them. So we practically would loss the sea waters separating these groups of islands from the main archipelago, or this shoal from the main archipelago. When you determine territorial seas, it would be from the low water mark of the outermost island of the main archipelago, excluding now these Kalayaan islands as well as the Scarbarough Shoal. This is now R.A. No. 9552. If you follow the definition of national territory, all waters around, between, connecting the islands form part of the internal waters. So the sea waters separating this KIG from Palawan form part of internal waters. But because of R.A. No. 9552, they are now excluded, and simply considered them as regime of islands. That is precisely the issue in the SC, but there is no decision yet. So you determine the countrys extended continental shelf also believed to contain substantial amounts of oil, natural gas, minerals, and poly-metals will be excluded if they are not covered by... if they are found outside of this archipelago... like if they are found in the part of the Kalayaan islands that will also be excluded, the continental shelf of those group of islands. The regime of islands consists of islands or natural front areas of land surrounded by waters that remain above water during high tide. That is the definition of regime of islands. Now, are they part of territory of the Philippines? The answer is yes, but they will be treated as separate from the Philippine archipelago. And the sea waters separating this regime of islands from the main archipelago shall be excluded from the definition of the archipelagic doctrine. When you determine territorial seas we are saying that part of the Philippine national territory are the airspace, terrestrial, and the maritime domain. In so far as the airspace is concerned, to what extent? That was asked in the bar exam. Do we own the universe, to what extent do we have jurisdiction over the universe? A very simple question however many of the examinees got rattled by that question. You will have the airspace and the extent of its territory as part of the Philippine national territory, subject only to the right of way. Like we entered in agreements and treaties with these foreign countries for the planes, especially commercial aircrafts to pass through. Bu the universe, like the international waters are free to everybodys use, subject to it must be for the benefit of mankind. Terrestrial domain refers to the strip of land, over which the Philippines has jurisdiction and sovereignty. It may not only be limited to the Philippine archipelago, but to the outside also. Remember, what is the basis historic right or legal title, like our claim over North Borneo, Marianas islands... and what... you have mastered that in your first year. The maritime domain or the territorial seas, now with R.A. No. 9552, that has to be changed. What constitution says to the Phil archipelago, comprises of the islands and waters embraced therein, the waters around, between, and connecting the islands regardless of breadth and dimension form part of the internal waters. Take note of what would be the extent of our take over of the territorial seas this time you will have to exclude the KIG and the SS because now they are considered simply as regime of islands. So you redrew instead of treating this as a rectangular, it would be now like a triangular form of territory. Now, how do you determine the territorial seas? If this is the outermost point of the outermost island, determine the low water mark when it is low tide the last portion of the sea that gets dry or is dry, when that water starts to run that would be your low water mark. Assuming this is the low water mark, then you will have up to 12 NM. Beyond that, It becomes international waters. Then if there is a contiguous zone, meaning that would be a submerged portion of the continent that even goes beyond the 12 NM. You will have the extent of 12 additional 12 NM from the last portion of the territorial seas. That means from the LWM, a total of 24 NM. Do we have jurisdiction over the contiguous zone? Is it part of our territory? It is not part of the territory but we have jurisdiction over the activities up to 12 NM from the end portion of the territorial seas for the purpose of implementing Customs Laws, Maritime Laws, Immigration Laws, and Sanitary Laws. I repeat, the CZ could even go beyond the TS, only up to 12 NM or 24 NM from the normal baseline. We dont have jurisdiction over the CZ, or it is not part of our territory, but we have jurisdiction for the purpose of implementing our Customs Laws, Maritime Laws, Immigration Laws, and Sanitary Laws.Again take note aside from that, it could still go beyond up to 200 NM as part of the Exclusive Economic Zone (EEZ). It is not part of our territory, it is beyond of the 12 NM Territorial Seas but we have exclusive control and jurisdiction in so far as the exploration, the utilization, the management of natural resources that may be found within the 200 NM EEZ. One of the questions relating to R.A. 9552 is the change of the delineation of Philippine archipelago as it is defined in the definition of National Territory because in effect it will exclude these islands when they are supposed to be part of the Philippine archipelago. So you wait when the question on the constitutionality is deliberated. But as it is now, the KIG and the SS are excluded from the main archipelago. So the definition of the internal waters and archipelagic waters are now changed because R.A. 9552. So you have also the delineation territory has been changed. Do you remember the Memorandum of Agreement that the government panel had entered into with the MILF, relating to the establishment of the Bangsamoro Juridical Entity. One of the issues raised there was why was it declared as unconstitutional. It is because it would violate the definition of the national territory because by allowing it, in effect, it would establish a separate state which is contrary to the provisions of Article 1 where it implies that there is only one state comprising of the Philippine national territory which comprises of the Philippine archipelago with all the islands and waters embraced therein. Another question that relating to this to the bar exam, is the question on, is it possible for the Congress to pass a law and provides for separate republics or separate states, in order to adopt a federal system, not by amending the constitution but by ordinary legislation. The answer is no. One of the constitutional basis is the definition of the national territory which implies only one single integrated state. If theres any change, you have to amend the constitution. Otherwise, the law is unconstitutional. Old issues like, is the provision in Article 1 that says and all other territories over which the Philippines has jurisdiction or sovereignty preclude the Philippines from claiming territories like Sabah, Marianas islands and Guam because in order for them to be part of the national territory, the state must have sovereignty and jurisdiction? You know what it means to have sovereignty and jurisdiction you have to have some control like you have to have control over the Kalayaan islands by establishing a government there, it is being declared as a municipality; or in the SS for example as part of the province of Zambales. Do we have a government in the North Borneo? We have many Filipinos there but there is no government established by Filipinos. Does that mean that because of that provision, we are dropping our claim over them? The answer is no. There is no decision by the SC, but by opinions of legal experts and jurists, they would think that we are not precluded from claiming them in the future. We may still claim them as part of our territory because we have historic right or legal title as basis. For as long as, we can acquire states in accordance with the modes recognized by international law such as purchase. We might probably in the future afford to buy the United State of America. By purchase, we can acquire a territory and under that definition, we are never precluded from acquiring territories in the future. CITIZENSHIP

Aside from territory, you also have People as element of the State. In Political Law, the term people has been used in different concepts, meaning there are different meanings for the term people as it is used in the constitution. It may refer to the inhabitants of the country in general which includes the foreigners. It may only refer to the citizens of the country. Or it may only refer to qualified voters. For example, some provisions in the constitution like the right of the people to information on matters of public concern. How do you understand the use of the word people in that context? It refers only to the citizens of the country, because at one time, it was asked in the bar exam if a foreign journalist can demand as a matter of right that he be given access to information pertaining to the Philippine Congress as part of his freedom of press. Remember that the freedom of press includes also the freedom to information because there can be no publication without the source of this information. And that is one of the guarantees of the freedom of press. Going back to the question, the answer is no. The word people in the right to information, refers only to the right of citizens because the right to information is a political right. When the constitution says that the right of the people against unreasonable search and seizure shall be inviolable, what is meant by people here? Can a foreigner invoke this right? The answer is yes because the word people here does not only refer to citizens of the country but as well as the foreigners, the inhabitants in this country, protected under this provision as part of his right to privacy.When the constitution says that the Constitution can only take effect as to its amendment upon ratification by the majority votes of the people, who are those people referred to here? It refers only to qualified voter because one who is under 18, not a registered voter definitely cannot vote in a plebiscite. When the constitution says voted by majority of the people, based on the plurality system, the people being referred there are only qualified voters. However, in political law (Constitutional Law 1) in particular, the term people finds its significance because of his membership in a political community. We talk about peoples participation in government - maybe the establishment of government, the management of government, the administration of government, or just simply making the government accountable to the people. The people being referred to there are those who are members of a political community, and those members of a political community we call government, is one who hold the tile of citizenship. In other words therefore, it basically refers to citizens because only citizens have this relationship with government. So we must understand who are citizens of the Philippines.You master Section 1 (Citizenship), you will be alright, and those provisions in the constitution relating to if you have lost your citizenship, how can you reacquire this citizenship. These are two important topics in the provision on citizenship (Article IV). Who are the citizens of the Philippines?

You have section 1. Paragraph 1 thereof provides those who are citizens of the Philippines at the time of the adoption of the 1987 constitution. When was the 1987 Constitution adopted? Is it upon the ratification or upon its declaration that it was validly ratified? Was it on Feb. 2 or was it on Feb. 10? It was on the date of the ratification - that was on Feb. 2, 1987. Meaning that if you are a citizen at the time of the adoption of the constitution, then you are a citizen. So those who are all considered as citizens of the Philippines by virtue of the Treaty of Paris which led to the enactment of the Philippine Bill of 1902 that defines who are citizens of the Philippines islands during the American occupation, then if they have remained as Filipinos citizens at that time 1987 Constitution was adopted, they are considered Filipino citizens. In fact, theyre considered as natural born because at that time there was no distinction of a natural born citizen from any ordinary citizen at that time. Who else are considered as citizens under this paragraph? You have the 1935 Constitution. So you have to understand who are considered as citizens under the 1935 Constitution. That includes who are children of father foreigner married to a Filipina and elected Philippine citizenship upon reaching the age of majority. Take note of that because later we will make reference to that to understand the citizenship of these children and their successors. The complication there are the successors because now their citizenship are being questioned, and they make reference to the citizenship of the predecessors who may be considered citizens of the Philippines under 1935 Constitution, if not under the Treaty Of Paris. Then of course, you have the 1973 Constitution - citizens of the Philippines who remained Filipino citizens at the time of the adoption of the 1987 Constitution. Let us just take certain cases wherein you apply the Philippine Bill of 1902. You have the case of Tecson vs. COMELEC. This has something to do with the citizenship of FPJ, when he ran as president of the republic in 2004. They were questioning on his citizenship because apparently, the father declared himself as a Spaniard, while the mother was a US citizen. So they have to determine the citizenship of his predecessors. First was the father. Was the father a Filipino citizen, notwithstanding having declared himself as a Spaniard? Partly, the father was born to a citizen of the Philippines pursuant to the Philippine Bill of 1902. The Phil Bill of 1902 defining citizenship pursuant to Treaty of Paris. Remember that the Treaty of Paris was the legal basis of the American occupation. And since then, under that treaty, the civil and political status of the territory and inhabitants thereof were determined by Philippine Congress. And thus, Philippine Congress passed the organic laws, such as Philippine Bill of 1902, Jones Law of 1916, and the Tydings McDuffie Law. And one of the provisions as stated in the Philippine Bill of 1902 was on the definition of citizenship. You still recall who are considered as citizens of the Philippine territory under the Philippine Bill of 1902. By the way, that was also copied in the Jones Law of 1916, then the Tydings McDuffie Law, which authorized the drafting of the 1935 Philippine Constitution, and likewise impliedly adopted in the 1935 Constitution. Do you recall who are onsidered the citizens of the Philippines? Do you still remember? There were three kinds of inhabitants, because in general it applies to the inhabitants of the Philippine islands. One, you have the native-born inhabitants it could refer to the aborigines, the Aetas and the Negritos and including the Muslims, I suppose who were included as the native-born inhabitants. They are considered as citizens of the Philippines. Another one, an inhabitant who was a native of Peninsular Spain, meaning a Spaniard, but at the time this Philippine Bill of 1902 was ratified sometime in April 11, 1899, they have remained in the Philippines. They are likewise considered as citizens of the Philippines being inhabitants as of April 11, 1899. Or you have an inhabitant who obtained Spanish papers on or before April 11, 1899. Like he could be a foreigner from a neighboring state, who was able to acquire some Spanish papers here - a Chinese and then able to acquire some Spanish papers and lived in the Philippines. As of April 11, 1899, being an inhabitant, he is considered a citizen of the Philippine islands at that time. Apparently the father of FPJ, Lorenzo Poe was an inhabitant of the Philippine islands, the fact that he died sometime in 1954. Because he died in the Philippines, he must have lived in the Philippines as of 1899. That makes him being an inhabitant a citizen of the Philippines. If he is a citizen, what is now the citizenship of the father of FPJ? The constitution of 1935 says, those whose fathers are citizens of the Philippines, the child is Filipino citizen. If Lorenzo Poe was a citizen of the Philippines, then his children must likewise be Filipino citizens. How about FPJ under 1935 Constitution when his father is illegitimate? They are saying there are no illegitimate children because they are innocent, there are only illegitimate parents, meaning not married to each other. Can he claim Philippine citizenship when the father was never married to the mother at the time he was born? We only presumed that the child is Filipino because the father who is a Filipino is married to the mother, regardless of the citizenship of the mother. But in this particular case, where there is no marriage between FPJs father and that of the mother. Under the existing rules at that time, what should be the citizenship of the child? It is the legally known parents citizenship. Who is the legally known parent? The mother because only the mother knows whos the father of her child. When the parents are not married to each other, it is usually the mothers citizenship that is the citizenship of the child. However, the opinion of Father Bernas then was the Constitution did not make any qualification whether the father is legitimate or illegitimate. For As long as there is some kind of certainty that the child is his, he is a Filipino then child must be a Filipino citizen. How can you be sure that the child is his? By his own admission and acknowledgement of the child. Then the child may adopt the citizenship of his father. And the circumstance that made that conclude that the father acknowledged FPJ because he continued to live with the mother of FPJ, notwithstanding his birth. Because if FPJ was not his son, he would not probably have continued cohabiting with the mother. So they are saying that FPJ, having been acknowledged as the fathers child, then he likewise became Filipino citizen under the 1935 Constitution. That is no longer a complication under the 1973 as well as 1987 Constitution. That was only a complication during the 1935 Constitution. Also take note guys that under the 1935, 1973, and 1987, for as long as the father is Filipino, the child is Filipino. How about if father is foreigner and mother is Filipino citizen? The complication was under 1935 Constitution because when the Filipina marries the father who is a foreigner, she automatically, ipso facto loses, her citizenship. In which case, during the minority of the child, he is a foreigner, has no choice now that the mother is a foreigner. But the child is given a chance of becoming a Filipino citizen by election. Upon reaching the age majority or within the reasonable period of time if he elects Filipino citizenship then he becomes Filipino citizen. And that is carried over under 1973 Constitution, and even under 1987 Constitution.If the child was born under 1973 Constitution, what would be the citizenship of the child and does he need to elect Philippine citizenship in order to become a Filipino? That is on the assumption that the mother Filipina married the foreigner father under the 1935 Constitution but he was born only under 1973 Constitution. For example, the mother Filipina was married to the Chinese father in 1965. What Constitution will govern? 1935, which means that the mother lost her citizenship. Now the child was born only in 1974, the question now is what is the citizenship of the child during his minority Chinese. Can he elect Philippine citizenship in order to become a Filipino? He cant. Why not? Because the Constitution of 1973 which we have adopted in 1987 provides that children are Filipino citizens if father OR mother are Filipino citizens at the time of birth. At the time of his birth, what was the citizenship of the father? Chinese. What was the citizenship of the mother? Chinese also. And therefore the child during his minority is a Chinese, and cannot elect Filipino citizenship because the Constitution says, only if he was born before January 17, 1973. He has to be born before Jan. 17, 1973 in order to apply the 1935 Constitution provision on citizenship by election. The cut-off period then guys for the child to elect Philippine citizenship whose mother is Filipino married to a foreigner father, he has to be born before Jan. 17, 1973 to qualify. Otherwise, if the child was born on Jan. 17, 1973 or thereafter, whose mother is a Filipino married to a foreigner, that child is an alien, a foreigner. And therefore, cannot elect Philippine citizenship in order to become Filipino because the 1973 Constitution says, those whose fathers or mothers are citizens at the time of the birth of the child. Since at the time of his birth, both parents are foreigners, then the child has no choice but be a foreigner. Under 1987, I suppose we dont have citizens by election anymore. We have but the cut-off period is 1994. If the child was born on Jan. 16, 1973, mother Filipino married to a foreigner, the child will be 21 (let us assume the majority age is still 21) in 1994. So by 1997, since three years is still a reasonable period of time after reaching the age of majority depending on the reasons of the delay in electing, there will be no children by election. Presumably, they either are Filipino citizens already having elected Philippine citizenship, or otherwise they have remained foreigner for failing to elect Philippine Citizenship within the reasonable period of time after reaching the age of majority in 1994. In other words, that provision is only transitory in acknowledging who are citizens of the Philippines. It applies only to children who are born before Jan. 17, 1973, whose mother is married Take note, the word is married. If the word used in the case is merely cohabited with the father. There is no marriage there. In which case, the child is Filipino because the child follows the citizenship of the legally known parent who is the mother. If the mother remains Filipino because she has not married the father, then the child is Filipino citizen. So take note of the terms used in the case. Natural-born Citizenship

Lets talk about on natural-born citizenship. Philippine bill of 1902 and the 1935 Constitution have no definition who are natural born citizens. It was only under the 1973 Constitution that we have a definition who is natural born citizen. This is significant because there are certain rights that are enjoyed only by natural born citizens and not by any other citizens of this country. There are three kinds of citizens in this country. You have natural born under 1973. And you have the native-born even, but can be considered natural born because they are citizens from birth. And then you have the naturalized, meaning those who are adopted foreigners after going through the process and acquired Filipino citizenship.

As Ive said, under the Philippine Bill of 1902 and the 1935 Constitution, there is no distinction. They enjoy the same rights as citizens of the Philippines. But under 1973, there is now a definition who is a natural born. He has to be a citizen of the Philippines from birth, and he doesnt need to do any act in order to acquire or perfect his citizenship in order to be considered a natural born. What are these rights? Political rights for example. In certain elections and appointments to the government, you cannot run as President or vice-president, you cannot run as members of Congress, you cannot be appointed to the SC, to the Sandiganbayan, or to the Court of Appeals, or to the Civil Service Commission as a commissioner, COA or COMELEC, or Ombudsman if you are not a natural born. That is the importance of the definition. Another point, there are certain economic and civil rights that can only be enjoyed by natural born citizens, like the matter of acquiring lands in the Philippines. If you are a foreigner, you cannot acquire lands in the Philippines. But if you are a former natural born citizen of the Philippines, you can acquire lands in the Philippines, like 5000 square meters in urban areas or 5 hectares in rural areas. Who were then considered as natural born under the 1973 Constitution? Those who are only citizens from birth. So therefore, citizens by election are not considered as natural born. So if he elected Philippine citizenship before the adoption of the 1973 Constitution, because there is no definition of who is a natural born, then he is a natural born citizen. After the adoption of the 1973 Constitution, upon his election of Philippine citizenship, he is no longer considered a natural born citizenship because he has to do an act in order to perfect his citizenship.

That has been changed under the 1987 Constitution. That even those who elected Philippine citizenship are considered as natural born, whether he elected Philippine citizenship before or after the adoption of the 1973 Constitution. Before or after, it doesnt matter anymore, under 1987 Constitution, he is a natural born. When you are given a case, and asked whether this successor, a child or a grandchild can run for offices like as President or as Vice-President or members of the Congress, then you determine the origin of the citizenship of his predecessor. If the predecessor was a citizen of the Philippines under the 1935 Constitution and Philippine Bill of 1902, under 1987 Constitution they are natural born, they fall under the first paragraph, because then there was no definition of a natural born. It was only under the 1973 Constitution when a definition was made. You have that case, do you remember, of a Filipino who was holding an Australian passport. The father was born to a Filipino father married to an Australian. The father was already an Australian citizen. And then the child came back to the Philippines and ran for public office. And so the question then at that time is whether she can run for an elective office. Apparently it was traced that he father was a son of a Filipino father under the Philippine Bill of 1902. The grandfather, being a natural born, that makes the father likewise a natural born citizen because he was born under the 1935 Constitution when there was no definition yet of a natural born citizen. And she being the daughter of that father, likewise makes her a natural born citizen, unless there is proof that she renounced her Philippine citizenship. That is then the principle at that time - the mere possession of a foreign passport is not conclusive proof that she has renounced her Philippine citizenship. I am stressing on the fact that under the Philippine Bill of 1902 and under the 1935 Constitution, there was no definition who is a natural born, until the 1973 Constitution was adopted, and we have that definition limited only to those who are considered citizens from birth. Which we later changed under 1987 by adding those who elected Philippine citizenship, considered likewise as natural born citizens.

This natural born issue finds its significance as well this time on repatriation. To apply for repatriation under the Dual Citizenship Act, you have to be a former natural born citizen. You have mastered the basics, so we go to the complications just in case you might be asked in the bar exam. This is because of the issue of the citizenship of Justice Ong. Remember Justice Ong, a justice of the Sandiganbayan, who was appointed to the SC, and later whose citizenship was questioned because he passed as justice of Sandiganbayan that requires a natural born citizen. How come later when he got appointed to the SC, an injunction was issued to enjoin the Executive Secretary from issuing an appointment to Justice Ong, and later enjoining the taking oath of office because he is not a natural born citizen. Thats why I am emphasizing likewise the issue on natural born citizen.Naturalization

Another point you should take note this tim