POLITICAL AND INTERNATIONAL LAW

BAR EXAM NOTES

Constitutional Law
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.
AMENDMENTS AND REVISIONS (ART.
XVII)
Revisions A change that alters a basic
principle in the constitution or alters the
substantial entirety of the constitution.
Amendments a change that adds, reduces
or deletes without altering the basic
principles involved.
Peoples Initiative (2014)
Several citizens, unhappy with the
proliferation of families dominating the
political landscape, decided to take
matters into their own hands. They
proposed to come up with a peoples
initiative defining political dynasties.
They started a signature campaign for
the purpose of coming up with a
petition for that purpose. Some others
expressed misgivings about a peoples
initiative for the purpose of proposing
amendments to the Constitution,
however. They cited the Courts
decision in Santiago v. Commission on
Elections, 270 SCRA 106 (1997), as
authority for their position that there is
yet no enabling law for such purpose.
On the other hand, there are also those
who claim that the individual votes of
the justices in Lambino v. Commission
on Elections, 505 SCRA 160 (2006),

mean that Santiagos pronouncement

has effectively been abandoned. If you
were consulted by those behind the
new attempt at a peoples initiative,
how would you advise them? (4%)
SUGGESTED ANSWER:
I shall advise those starting a peoples
initiative that
initiative to pass a law defining political
dynasties may
proceed as their proposal is to enact a law
only and not to amend the Constitution. The
decision in Santiago v. Commission on
Elections, 270 SCRA 106 [1997], which has
not been reversed, upheld the adequacy of
the provisions in Republic Act 6735 on
initiative to enact law.
NOTE: Any doctrine or principle of law laid
down by the Court, either rendered en
banc or in division, may be overturned or
reversed only by the Court sitting en banc.
PROPOSAL STAGE:
1. Constituent Assembly
- Congress by vote of all its
members
2. Constitutional Convention
- Direct: Congress by 2/3 vote of all
its members
- Indirect: Congress by majority vote
3. Peoples Initiative [DefensorSantiago v. COMELEC, 270 SCRA
170 (1997)]
- Not self-executing, R.A. 6735 is
incomplete, inadequate or wanting
in essential terms and conditions
- limited to amendments to the
constitution and not revision
- petition of at least 12% of the total
number of registered voters; every
legislative district must be
represented
by at least 3% of the registered
voters
therein
- Not more than once every 5 years
RATIFICATION: Plebiscite, held not earlier
than 60 days nor later than 90 days.
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Lambino v. COMELEC, G.R. No.174153.

October 25, 2006 considered the two-part
test:
(1) Quantitative test The court examines
only
the number of provisions affected and does
not consider the degree of the change.

(1)

(2) Qualitative test The main inquiry is

whether the change will accomplish such far
reaching changes in the nature of our basic
governmental plan as to amount to a
revision.

ARTICLE I
NATIONAL TERRITORY
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. 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.
Q: What comprises the national
territory? What
does it consist of?
A: The national territory is comprised of
(1) Philippine archipelago, with all the islands
and waters embraced therein; Internal
waters waters around, between, and
connecting the islands of the archipelago,
regardless of breadth and dimension; and
(2) All other territories over which the
Philippines has sovereignty or jurisdiction
It consists of

Terrestrial, fluvial, and aerial domains

(2) Territorial sea, seabed, subsoil, insular
shelves, and other submarine areas
Describe the following maritime
regimes under UNCLOS (4%)
(a) Territorial sea
These waters stretch up to 12 miles from the
baseline on the seaward direction, which are
subject to the sovereign jurisdiction of the
coastal state.
(b) Contiguous zone
This is a zone contiguous to a coastal state's
territorial sea, which may not extend beyond
24 nautical miles from the baselines from
which the breadth of the territorial sea is
measured. Here, the State exercises the
control necessary to prevent infringement of
its (CFIS) Customs, Fiscal, Immigration, or
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Sanitary laws and regulations within its

territory or territorial sea.
(c) Exclusive economic zone
It is the stretch of area up to 200 miles from
the baselines. Within this zone, a State may
regulate nonliving and living resources, other
economic resources, artificial installations,
scientific research, and pollution control.
(d) Continental shelf
It is the seabed and subsoil of the submarine
areas that extend to a distance of 200
nautical miles from the baselines from which
the breadth of the territorial sea is measured
where the outer edge of the continental
margin does not extend up to that distance.

A bill was introduced in the House of

Representatives in order to implement
faithfully the provisions of the United
Nations Convention on the Law of the
Sea (UNCLOS) to which the Philippines
is a signatory. Congressman Pat Rio Tek
questioned the constitutionality of the
bill on the ground that the provisions of
UNCLOS are violative of the provisions
of the Constitution defining the
Philippine internal waters and territorial
sea. Do you agree or not with the said
objection? Explain. (3%) (2013, 2015)
ANSWER: The objection is untenable since
the bill is constitutional.
In one case, the Supreme Court held
that baselines laws are statutory
mechanisms for UNCLOS States parties to
delimit with precision the extent of their
maritime zones and continental shelves, and
has nothing to do with delineation of
territory. (Magallona vs. Ermita, G.R No.
187167, July 16, 2011)
Here, the proposed enactment of an
UNCLOS compliant baselines law as

embodied in the bill, allows an

internationally-recognized delimitation of the
breadth of the Philippines maritime zones
and continental shelf. The bill therefore is a
vital step on the part of the Philippines in
safeguarding its maritime zones, consistent
with the Constitution and our national
interest.
What is the basis of the Philippines'
claim to a part of
the Spratly Islands?
SUGGESTED ANSWER:
The basis of the Philippine claim is effective
occupation
of a territory not subject to the sovereignty
of another
state. The Japanese forces occupied the
Spratly Island
group during the Second World War.
However, under the San Francisco Peace
Treaty of 1951 Japan formally
renounced all right and claim to the Spratlys.
The San
Francisco Treaty or any other International
agreement
however, did not designate any beneficiary
state
following the Japanese renunciation of right.
Subsequently, the Spratlys became terra
nullius and was
occupied by the Philippines in the title of
sovereignty.
Philippine sovereignty was displayed by open
and public
occupation of a number of islands by
stationing of military forces, by organizing a
local government unit, and by awarding
petroleum drilling rights, among other
political and administrative acts. In 1978, it
confirmed its sovereign title by the
promulgation of Presidential Decree No.
1596, which declared the Kalayaan Island
Group part of Philippine territory.
MODES OF ACQUIRING TERRITORY:
(1) Occupation (Terra Nulius);
(2) Accession or accretion;
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(3) Cession; and

(4) Prescription.
The Government and the MILF were
scheduled to sign a Memorandum of
Agreement on the Ancestral Domain
(MOA-AD) aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 in Kuala
Lumpur, Malaysia. The GRP-MILF
agreement is the result of a formal
peace talks between the parties
in Tripoli, Libya in 2001. The pertinent
provisions in the MOA-AD provides for
the establishment of an associative
relationship between the Bangsamoro
Juridical Entity (BJE) and the Central
Government. It speaks of the
relationship between the BJE and the
Philippine government as associative,
thus implying an international
relationship and therefore suggesting
an autonomous state. Furthermore,
under the MOA-AD, the GRP Peace Panel
guarantees that necessary amendments
to the Constitution and the laws will
eventually be put in place. Is the said
MOA-AD constitutional?
ANSWER:
No. The SC ruled that the MOA-AD cannot be
reconciled with the present Constitution and
laws. Not only its specific provisions but the
very concept underlying them, namely,
the associative relationship envisioned
between the GRP and the BJE, are
unconstitutional, for the concept
presupposes that the associated entity is a
state and implies that the same is on its way
to independence, it said. Moreover, as the
clause is worded, it virtually guarantees
that the necessary amendments to the
Constitution and the laws will eventually be
put in place. Neither the GRP Peace Panel
nor the President herself is authorized
to make such a guarantee. 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 ensure the
outcome of the amendment process is
through an undue influence or interference
with that process. While the MOA-AD would
not amount to an international
agreement or unilateral declaration binding
on the Philippines under international law,
respondents act of guaranteeing
amendments is, by itself, already a
constitutional violation that renders the MOAAD fatally defective.
Justice Santiago said, among others, that the
MOA-AD contains provisions which are
repugnant to the Constitution and which will
result in the virtual surrender of part of
the Philippines territorial sovereignty.
She further said that had the MOA-AD been
signed by parties, would have bound the
government to the creation of a separate
Bangsamoro state having its own territory,
government, civil institutions, and armed
forcesThe sovereignty and territorial
integrity of the Philippines would have been
compromised. (GR No. 183591,
Province of North Cotabato v. Republic,
October 14, 2008)
Notes:
In this case, The Court explained that the
Presidential Adviser on the Peace Process
committed grave abuse of discretion when
he failed to carry out the
pertinent consultation process, as
mandated by EO No. 3, RA 7160, and RA
8371.
EO No. 3 is replete with mechanics for
continuing consultations on both national
and local levels and for a principal forum for
consensus-building.
RA 7160 (the Local Government Code of
1991) requires all national offices to conduct
consultations before any project or
program critical to the environment and
human ecology including those that
may call for the eviction of a particular
group of people residing in such
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locality, is implemented therein. The MOAAD is one peculiar program that

unequivocally and unilaterally vests
ownership of a vast territory to the
Bangsamoro people, which could pervasively
and drastically result to the diaspora or
displacement of a great number of
inhabitants from their total environment.

informed consent (FPIC) of the Indigenous

Cultural Communities/Indigenous
Peoples. (GR No.
183591, Province of North Cotabato v.
Republic, October 14, 2008)

RA 8371 (the Indigenous Peoples Rights Act

of 1997) provides for clear-cut procedure for
the recognition and delineation of ancestral
domain, which entails, among other things,
the observance of the free and prior

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