Notes in Political Law 2010

powers of the municipal corporations,

PRELIMINARIES including municipal ordinances, contracts,
liabilities, and enterprises.
I. Political Law 4. Law of Public Officers. It is a study of the
A. Definition of Political Law creation, modification and dissolution of
B. Scope/Divisions of Political Law public office as well as the eligibility of the
C. Basis of Philippine Political Law public officers, the manner of their election or
appointment and assumption of office, their
II. Constitution rights, duties, powers, inhibition and liabilities,
A. Definition of Constitution and the modes of terminating their official
B. Classifications of Constitution relations.
C. Essential Parts of a Good Written Constitution 5. Election Laws. It is a study of the laws, rules
D. Qualities of a Good Written Constitution and procedure involving the conduct of
E. Philosophical View of the Constitution election of all public officials who will exercise
F. Interpretation/Construction of the Constitution
the powers of government as allocated to and
G. Evolution of Philippine constitution
within their functions and responsibilities.
H. The 1987 Constitution

III. Basic Concepts C. Basis of Philippine Political Laws

A. Constitutionalism
B. Philippine Constitutionalism The principles of government and political law of
C. Doctrine of Constitutional Supremacy the Philippines are fundamentally derived from
D. Republicanism American jurisprudence. These conditions were the
E. Principle of Separation of Powers inevitable outcome of the establishment of the
F. Principle of Non-delegation of Powers American rule in the Philippines. When Spain ceded
G. System of Checks and Balances the Philippines to the US, the Spanish Political laws
H. Judicial Review were automatically displaced by those of the US.2
I. Due Process

Constitution
POLITICAL LAW

A. Constitution Defined. It is a body of rules and

A. Political Law Defined. That branch of public law maxims in accordance with which the power of
which deals with the organization and operations the sovereignty are habitually exercised. 3
of the governmental organs of the state and
Most likely, it is defined as the supreme law
defines the relations of the state the inhabitants
of the land as ordained and established by the
of its territory1
people which prescribes the permanent
framework of the system of the government,
B. Scope/ Division of Political Law. which establishes the basic principles upon which
the government is founded, and which defines
1. Constitutional Law. The study of maintenance and allocates to the various organs of the
and proper balance between authority as government their respective powers and duties.4
presented by the three inherent powers of the
As to generality and permanence of the
State and liberty as guaranteed by the Bill of
constitution:
Rights.
Note: A constitution differs from a statute. It is
2. Administrative law. That branch of public law intended not merely to meet existing
which fixes the organization of the conditions, but to govern the future.
government, determines the competencies of
It has been said that the term ‘constitution’
the administrative authorities who execute
implies an instrument of a permanent
the law, and indicates to the individual
nature.
remedies for the violation of his rights.
3. Law on Municipal Corporations. This is a
B. Classifications of Constitution
study of general principles governing the
municipal corporations, the laws affecting the
creation, organization and government of
provinces, cities, municipalities and
2
barangays; the scope and application of the Vicente Sinco, Philippine Political Law 2, 10th ed., 1954.
3
This definition is comprehensive enough to cover written and
unwritten constitutions. (Cruz, Constitutional Law)
1 4
People v. Perfecto, 43 Phil. 887 J. Malcom, Phil. Constitutional Law p.6

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 Notes in Political Law 2010

1. Written5 or Unwritten6
“The Constitution is a social contract.”17
2. Enacted (conventional)7 or Evolved
(Cumulative);8 Viewed in the light of the Social Contract
9 10 Theories, the Constitution may be considered as the
3. Rigid or Flexible Social Contract itself in the sense that it is the very
4. Normative- adjusts to norms; basis of the decision to constitute a civil society or
Nominal –not yet fully operational; State, breathing life to its juridical existence, laying
Semantic-perpetuation of power down the framework by which it is to be governed,
enumerating and limiting its powers and declaring
Note: The Constitution of the Philippines is written, certain fundamental rights and principles to be
conventional and rigid. inviolable.
The Constitution as a political document may
C. Essential Parts of a Good Written Constitution be considered as the concrete manifestation or
expression of the Social Contract or the decision to
1. Constitution of Liberty11 abandon the ‘state of nature’ and organize and
2. Constitution of Government12 found a civil society or State.
3. Constitution of Sovereignty13
F. Interpretation/Construction of the Constitution
D. Qualities of a Good Written Constitution In Fransisco v. House of Representatives, the SC
1. Broad 14 made reference to the use of well-settled principles
2. Brief15 of constitutional construction, namely:
3. Definite16
1. Verba Legis18
2. Ratio legis et anima19
E. Philosophical View of the Constitution 3. Ut magis valeat quam pereat20

5
Written constitution whose concepts are embodied in one
G. Evolution of Philippine Constitution
document or set of documents;
6
Unwritten constitution consists of rules which have not
1. Malolos Constitution
been integrated into a single, concrete form but are scattered
in various sources, such as statute of a fundamental 2. The American Regime and the Organic Acts
character, judicial decisions, commentaries of publicist, 3. The 1935 Constitution
customs and traditions, and certain common law principles. 4. The Japanese (Belligerent) Occupation
7
Conventional constitution is enacted, formally struck off at 5. The 1973 Constitution
a definite place and time following a conscious or deliberate
effort taken by a constituent body or ruler
8
Cumulative constitution is the result of political evolution, H. The 1987 Constitution
not inaugurated at any specific time but changing by
accretion rather than any systematic method The 1987 Constitution is the 4th fundamental law
9
Rigid Constitution is one that can be amended only by
to govern the Philippines since it became
formal and usually difficult process;
10
Flexible constitution is one that can be change by ordinary independent on July 4, 1946.
legislation
11
The series of prescriptions setting forth the fundamental Background:
civil and political rights of the citizen s and imposing
limitations on the powers of the government as a means of 1. Proclamation of the Freedom Constitution
securing the enjoyment of those rights (ARTICLE III)
12
The series of provisions outlining the organization of the a. Proclamation No. 1, February 25, 1986,
government, enumerating its powers laying down certain announcing that she (Corazon Aquino) and
rules relative to its administration and defining the electorate VP Laurel were assuming power.
(ARTICLES VI, VII, VIII and IX)
13
The provisions pointing out the mode or procedure in b. Executive Order No.1, (February 28, 1986)
accordance with which formal changes in the fundamental c. Proclamation No.3, March 25, 1986,
law may be brought about. (ARTICLE XVII) announced the promulgation of the
14
Broad Because it provides for the organization of the Provisional (Freedom) Constitution, pending
entire government and covers all persons and things
within the territory of the State and also because it must
the drafting and ratification of a new
be comprehensive enough to provide for every
contingency. (Cruz, Constitutional Law pp 5-6) 17
Marcos v. Manglapus
15
Brief. It must confine itself to basic principles to be 18
Plain meaning rule; whenever possible the words used in
implemented with legislative details more adjustable to the Constitution must be given their ordinary meaning except
change and easier to amend. (Cruz, Constitutional Law pp 4- when technical terms are employed.
5) 19
Interpretation according to spirit; the words of the
16
Definite. To prevent ambiguity in its provisions which Constitution should be interpreted in accordance with the
could result in confusion and divisiveness among the people. intent of the framers.
20
(Cruz, Constitutional Law pp 4-5) The constitution has to be interpreted as a whole.

2 |Teope, Lim &Bagaporo ©


Constitution. It adopted certain provisions in
the 1973 Constitution, contained additional
articles on the executive department, on
government reorganization, and on existing
laws. It also provided of the calling of a
Constitutional Commission to be composed
of 30-50 members to draft a new
Constitution.
2. Adoption of the Constitution
a. Proclamation No. 9, creating the
Constitutional Commission of 50 members.
b. Approval of the draft Constitution by the
Constitutional Commission on October 15,
1986
c. Plebiscite held on February 2, 1987
d. Proclamation No. 58, proclaiming the
ratification of the Constitution.
3. Effectivity of the 1987 Constitution: February 2,
1987.
Salient Features:
1. The new Constitution consists of 18 articles and is
excessively long compared to the 1935 and 1973
constitutions.
2. The independence of the judiciary has been
strengthened with new provisions for
appointment thereto and an increase in its
authority, which now covers even political
questions formerly beyond its jurisdiction.
3. The Bill of Rights of the Commonwealth and
Marcos constitutions has been considerably
improved in the 1987 Constitution and even
bolstered with the creation of a Commission of
Human Rights.
Basic Concepts
A. Constitutionalism
Constitutionalism refers to the position or
practice that government be limited by a
constitution.
The doctrine or system of government in which
the governing power is limited by enforceable rules
of law; and concentration of power is limited by
various checks and balances so that the basic rights
of individuals and groups are protected.
B. Philippine Constitutionalism
Constitutionalism in the Philippines, understood
in the American sense, dates back to the ratification
Notes in Political Law 2010
of Treaty of Paris. Then it grew from a series of
organic documents. These are:
1. Pres. Mc Kinleys’ Instruction to the Second
Phil. Commission;
2. Phil. Bill of 1902;
3. Phil. Autonomy Act of 1916. (Bernas,
Commentary xxxviii)
C. Doctrine of Constitutional Supremacy
The American case of Marbury v. Madison laid
down the classic statement on constitutional
supremacy” “It is a proposition too plain to be
contested, that the Constitution controls any
legislative act repugnant to it.”
Constitutional supremacy produced judicial review.21
Q. What is the Doctrine of Constitutional Supremacy?
A. Under the doctrine of constitutional supremacy, if a
law or contract violates any norm of the Constitution,
that law or contract, whether promulgated by the
legislative or by the executive branch or entered into
by private persons for private purposes, is null and void
and without any force and effect. Thus, since the
Constitution is the fundamental, paramount and
supreme law of the nation, it is deemed written in
22
every statute and contract.
Q. What is the effect of declaration of
unconstitutionality of a law?
A. An unconstitutional act is not a law; it confers no
right, imposes no duties; and affords no protection; it
creates no office; it is inoperative, as if it had not been
passed at all (ORTHODOX VIEW).
Note: This is an overstatement, for a law held
unconstitutional is not always wholly a nullity.
Courts simply refuse to recognize the law and
determine the rights of the parties as if the statute had
23
no existence. Certain legal effects of the statute prior
to its declaration of unconstitutionality may be
24
recognized. Thus, a public officer who implemented
an unconstitutional law prior to the declaration of
25
unconstitutionality cannot be held liable. (MODERN
VIEW)
Partial Unconstitutionality Requisites:
1. The legislature must be willing to retain the
valid portion(s), usually shown by the
21
Defensor Santiago, Constitutional Law 7.
22
Supra.,Manila Prince Hotel v. GSIS
23
Manila Motors v Flores, 99 Phil. 738; Agbayani v. PNB, 35
SCRA 429; Republic v. Herida, 119 SCRA 411
24
Pelaez v. Auditor General, 15 SCRA 569
25
Ynot v IAC
3 |Teope, Lim &Bagaporo ©

presence of a separability clause in the
law—INTENT OF THE
LEGISLATIVE; and
2. The valid portion can stand independently
as law—INDEPENDENCE OF THE
PROVISIONS.
D. Republicanism
The essence of republicanism is representation
and renovation, the selection by the citizenry of a
corps of public functionaries who derive their
mandate from the people and act on their behalf,
serving for a limited period only, after which they
are replaced or retained at the option of their
principal.26
E. Doctrine of Separation of Powers
F.
Legislative power is given to the Legislature
whose members hold office for a fixed term (Art. 6
Sec.1); executive power is given to a separate
Executive who holds office for a fixed term (Art. 7
Sec.1); and judicial power is held by an independent
Judiciary (Art. 8 Sec.1).27
F. Principle of Non-delegation of Powers
“potestas delegate non delegari potest” – (what has
been delegated cannot be delegated)
Theory:
The theory is that “a power definitely assigned
by the Constitution to one department can neither
be surrendered nor delegated by that department,
nor vested by statute in another department or
agency.”28
General Rule: Non-delegation
Exception: Permitted by sovereign power
*Applicable to the 3 branches but is especially
important in the legislative branch
Reasons:
1. Frequency and necessity for it to delegate
2. Delegation by legislative branch has become
the rule and non-delegation the exception
3. Legislature cannot be expected to
reasonably comprehend all problems
4. Specialization
26
Cruz, Political Law.
27
Sandoval, Lecture Notes in Political Law Review, 2006-2007
28
Williams v. US, 289 US 553 (1933).
Notes in Political Law 2010
Permissible Delegations (PETAL):
1. Delegation to the PEOPLE at large through
initiative and referendum
2. Delegation of EMERGENCY powers to the
President
3. Delegation of TARRIF powers to the
president
4. Delegation to the ADMINISTRATIVE bodies
5. Delegation to the LOCAL government
 TARIFF POWERS
“The Congress may, by law, authorize the
President to fix within specified limits, and subject to
such limitations and restrictions as it may impose, tariff
rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts within the framework
of the national development program of the
29
Government.”
Reason: necessity to give Chief Executive the
authority to act immediately on certain matters
affecting the national economy; legislative process is
too cumbersome for the speedy solution of some
economic problems, especially those relating to
foreign trade
 EMERGENCY POWERS
“In times of war or other national emergency, the
Congress may, by law, authorize the President, for a
limited period and subject to such restrictions as it may
prescribe, to exercise powers necessary and proper to
carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers
30
shall cease upon the next adjournment thereof.”
Reasons:
1. Quorum cannot be convened in Congress in
times of national emergency
2. Quorum will cause divisiveness and delay
the effective solution to problems
3. Problems must be solved in the shortest
possible time to prevent them from
aggravating the difficulties of the nation
Note: President becomes a constitutional dictator
when emergency powers are delegated but in the strict
legal theory, there is no total abdication of legislative
authority in his favor (Conferment is restricted)
Restrictions:
1. Must be war or other national emergency
2. For a limited period only
3. Subject to restrictions which Congress may
prescribe
29
Article VI Section 28 (2).
30
Article VI Section 23 (2)
4 |Teope, Lim &Bagaporo ©

4. Exercised only to carry out a national policy
declared by Congress
Emergency powers are self-liquidating –
automatically cease upon the end of the emergency
which justified its delegation UNLESS sooner
withdrawn (Example, CA 671 which conferred
emergency powers to the president following the
outbreak of the Pacific War in 1941, authorized their
existence only “during the existence of the
emergency”)
Other national emergency – (1) rebellion (2)
economic crisis (3) pestilence (4) epidemic (5)
typhoon (6) flood (7) other similar catastrophe of
nationwide proportions or effect.
Conferment of emergency powers on the
president is not mandatory on the Congress, that is,
Congress may choose to hold on to its legislative
powers and refuse to delegate it or limit its duration
and terminate it before the end of the emergency
Emergency does not automatically confer
emergency powers to the President; Emergency
itself cannot and should not create power. (Chief
Justice Paras)
The President is authorized to exercise powers
“necessary and proper” only for the purpose of
carrying out a national policy declared by Congress.
Acts beyond the scope of the delegated authority
may be challenged
Delegation of emergency powers must be
temporary or it cannot be said to be an emergency.31
 DELEGATION TO THE PEOPLE
Except in those cases where, by the
Constitution, the people have expressly reserved to
themselves a power of decision, the function of
legislation cannot be exercised by them, even to the
extent of accepting or rejecting a law which has
been framed for their consideration because the
people have voluntarily surrendered such power
when they adopted the Constitution (Cooley)
REFERENDUM and PLEBISCITE Distinguished.
Referendum – method of submitting an important
legislative measure to a direct vote of the whole
people
Plebiscite – questions submitted to the people are
intended to work more permanent changes in the
political structure; decree of the people (example,
proposal to amend the Constitution)
31
Araneta vs. Dinglasan
Notes in Political Law 2010
 DELEGATION TO LOCAL GOVERNMENTS
1987 Administrative Code (EO292)
Basis: Local legislature is more knowledgeable than
national lawmaking body on matters of purely local
concern and are in a better position to enact the
necessary and appropriate legislation thereon
Cardinal principle that local affairs should be
managed by local authorities and general affairs by
the central authority
Creation of municipalities is not a transfer of
general legislative power but a grant of authority to
prescribe local regulations, subject to the
interposition of the superior in cases of necessity
Power of eminent domain (under the General
Welfare Clause) and police power has been expressly
delegated by the legislature to the local law making
bodies
 DELEGATION TO ADMINISTRATIVE BODIES
1. Power of subordinate legislation is given to
Administrative Bodies
2. They may also issue contingent regulations
pursuant to a delegation of authority to
determine a fact or state of things upon
which the enforcement of a law depends
TESTS OF DELEGATION
1. Completeness Test32
2. Sufficient Standard test33
Note: INVALID DELEGATION OF LEGISLATIVE POWER- If
there are gaps that will prevent its enforcement,
delegate is given the opportunity to step into the shoes
of the legislature and exercise discretion in order to
repair the omissions
SUFFICIENT STANDARD – maps out the boundaries of
the delegate’s authority and indicating the
circumstances under which it is to be pursued and
effected (purpose: prevent total transference of
legislative power).
G. System of Checks and Balances
H.
The Constitution fixes certain limits on the
independence of each department. In order that
these limits may be observed, the Constitution gives
32
COMPLETENESS TEST – law must be complete in all
essential terms and conditions when it leaves the legislature
so that there will be nothing left for the delegate to do when
it reaches him except to enforce it
33
SUFFICIENT STANDARD TEST – if law does not spell out in
detail the limits of the delegate’s authority, it may be
sustained if delegation is made subject to a sufficient
standard.
5 |Teope, Lim &Bagaporo ©

each department certain powers by which it may
definitely restrain the other from exceeding their
authority. A system of checks and balances is thus
formed.
To carry out the system of checks and balances,
the Constitution provides:
1. The acts of the legislative department have to
be presented to the executive for approval or
disapproval.
2. The executive department may veto the acts of
the legislature if in its judgment they are not in
conformity with the Constitution or are
detrimental to the interests of the people.
3. The courts are authorized to determine the
validity of legislative measures or executive
acts.
4. Through its pardoning power, the executive
may modify or set aside the judgments of the
courts.
5. The legislature may pass laws that in effect
amend or completely revoke decisions of the
courts if in its judgment they are not in
harmony with its intention or policy which is
not contrary to the Constitution.34
6. President must obtain the concurrence of
Congress to complete certain significant acts.
7. Money can be released from the treasury only
by authority of Congress.35
H. Judicial Review
The power of the courts to test the validity of
executive and legislative acts in the light of their
conformity with the Constitution; this is not an
assertion of superiority by the courts over the other
departments, but merely an expression of the
supremacy of the constitution (Angara v Electoral
Commission, 63 Phil. 139). The power is inherent in
the Judicial Department by virtue of the Doctrine of
Separation of Powers.
That duty is part of the judicial power vested in
the courts by an express grant under Sec. 1 Art 8 of
the Constitution which states: “Judicial power
includes the duty of the courts of justice (1) to settle
actual controversies involving rights which are legally
demandable and enforceable, and (2) to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the
government.”36
34
Tarlac v. Gale, 26 Phil. 338 cited in Vicente Sinco, Philippine
Political Law 135, 10th ed., 1954.
35
Bernas, Commentary 656, 2003 ed.
36
Bondoc v. Pineda, 201 SCRA 792
Notes in Political Law 2010
Note: The first function, as understood in the 1973
Constitution, is the TRADITIONAL concept of Judicial
power.
The second is known as the EXPANDED power
of judicial review or EXTRAORDINARY POWER OF
COURT. This part adversely affects the POLITICAL
QUESTION DOCTRINE.
FUNCTIONS OF JUDICIAL REVIEW
a. Checking
b. Legitimating
c. Symbolic
JUSTICIABLE QUESTIONS – implies a given right
legally demandable and enforceable, act or omission
violative of such right and a remedy granted and
sanctioned by law, for said breach of right37
Example: Non-compliance with the voting
requirement prescribed by the fundamental law –
tax exemption is enacted by less than majority of all
members of the Congress or when an appointee of
the President does not possess the prescribed
qualifications = Courts will have jurisdiction
POLITICAL QUESTIONS – falls under the discretion of
another department or especially the people
themselves; MAY not be subject of judicial review;
question of policy
Examples:
1. Wisdom, efficacy or practicability of a law
and impeachment is with the Congress
2. Interpretation of certain provisions of
Constitution is the exclusive jurisdiction of
the SC
2 Kinds of Political Questions38
1. Those questions which, under the
constitution, are to be decided by the
people in their sovereign capacity;
2. Or in regard to which full discretionary
authority has been delegated to the
legislative or executive branch of the
government. It is concerned with issues
dependent upon the wisdom, not legality of
a particular measure.
Justiciable v. Political Questions
Expulsion of member of Congress must be
based on disorderly behavior and concurred in by
2/3 of all colleagues = political question. But when it
37
Casibang v. Aquino
38
Tanada v. Cuenca
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 Notes in Political Law 2010

is supported by less than the required vote then it is
a justiciable question.
1. Under the 1935 Constitution, the Electoral
Tribunal should be composed of 3members of
the SC to be designated by the Chief Justice,
6members to be chosen by each house, 3
upon the nomination of the party having the
largest number of votes and 3 upon the
nomination of the party having the second
largest vote. Senate had only one minority
member who nominated himself, the majority
named two other. The minority member
questioned the procedure and the majority
moved to dismiss the case on the reason that
it is a political question but SC ruled that it is a
justiciable question (Tañada vs. Cuenco)
Constitution.39 Constitutional supremacy produced
judicial review, which in turn led to the accepted role
of the Court as “the ultimate interpreter of the
Constitution.”40
I. Due Process
Origin:
By the 39th chapter of the Magna Carta
wrung by the barons from King John, the despot
promised that “no man shall be taken, imprisoned or
disseized or outlawed, or in any manner destroyed;
nor shall we go upon him, nor send him, but by the
lawful judgment of his peers or by the law of the
land.

2. Whether or not the president has the power

to propose amendments is a justiciable Concept of State
question. Political questions are associated
with the wisdom and not the legality of a I. Definition of State
particular act (Sanidad vs. COMELEC)
II. Principle of State Continuity
3. Wisdom of the President and Senate in III. Elements of the State
enlisting the country in WTO and on the
A. People
merits of trade liberalization will not be
B. Government
looked into. The SC will only exercise its
C. Territory
constitutional duty to determine whether or D. Sovereignty
not there had been a grave abuse of discretion
amounting to lack or excess of jurisdiction on
the part of the Senate in ratifying the WTO State Defined. A state is a community of persons
agreement and its 3 annexes (Tañada vs. more or less numerous, permanently occupying a
Angara) definite portion of territory, independent of external
control, and possessing an external government o
Note: which the great body of inhabitants render habitual
obedience.
Under the new Constitution, scope of political
question is constricted because judicial power State vs. Nation
includes “the duty xxx to determine whether or not
The former is a LEGAL CONCEPT while the latter
there has been a grave abuse of discretion
is a RACIAL or an ETHNIC CONCEPT.
amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Note: There may be one state with many nations.
E.g. Arab Nations or there may be several state with
Government”.
one nation. E.g. United States of America
Article VII Section 18 – “the SC may review, in an
Principle of State Continuity
appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of For as long as the four elements of the State are
martial law or the suspension of the privilege of the present, the state shall continue to exist,
notwithstanding a change in one or more of these
writ of habeas corpus or the extension thereof.”
essential elements.
The political question doctrine is not abolished.
ELEMENTS OF THE STATE
Discretionary acts outside of those specifically 1. People
mentioned by the Constitution are not subject to 2. Government
judicial review. 3. Territory
4. Sovereignty
Expression of Constitutional Supremacy
Judicial review is not an assertion of superiority by PEOPLE
the courts over the other departments, but merely 39
Angara v. Electoral Commission, 63 Phil 139.
40
an expression of the supremacy of the See Cooper v. Aaron, 358 US 1 (1956)

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 Notes in Political Law 2010

ethical being and an abstract concept cannot commit

any wrong.
People refer simply to the inhabitants of the
state. It is agreed that they must be numerous
enough to be self-sufficing and to defend themselves
Q. What is the Doctrine of Parens Patriae?
and small enough to be easily administered and
sustained.
A. Literally, parents of the people. As such, the
Government may act as guardian of the rights of
Different Meanings of “People” as used in the people who may disadvantaged or be suffering from
Constitution: disability or misfortune46

1. Inhabitants41
Q. Distinguish De Jure from De Facto Government.
2. Electors42
3. Citizens43 A. A De Jure government (government of law) is a
44 government that has a lawful title although it may
4. Sovereign
not be in possession of the machinery of the state
but the point is it has the lawful title. On the other
GOVERNMENT hand, De Facto government (government of fact) has
no lawful title but it is in actual possession of the
machinery of the state.
It is understood as the agency through which the
will of the state is Formulated, Express, and Realized
THREE KINDS OF DE FACTO GOVERNMENT47
(FER).
Note: State is an abstract being that can only act A. By insurrection – that which is established
through its agent. Since the government is a mere by the inhabitants who rise in revolt against
agent and the State is the principal, any good thing and depose the legitimate regime.
performed by the government is always attributable
e.g the Commonwealth established by
to the Sate.
Oliver Cromwell which supplanted the
monarchy under Charles I of England
Government vs. Administration
Government is the institution through which the B. By government of paramount force - that
state exercises power. Administration consists of the which is established in the course of war by
set of people currently running the institution. invading forces of one belligerent to the
territory of other belligerent, the
Functions of Government government of which is displaced.
1. Governmental (Constituent) -are the e.g the Japanese occupation in the
compulsory functions which constitute the government in the Philippines which
very bonds of society replaced the Commonwealth during WW II.
2. Proprietary (Ministerial)—optional functions
of the government for achieving a better life C. By cession – that which is established by the
for the community45 inhabitants of a state who cedes there from
without overthrowing its government.

Q. What if the government performs an act that e.g the confederate government during the
proves harmful to the people, will you attribute that American Civil War, however did not seek to
to the state? depose the union government.

A. No. The mandate of the state to the Q. Is the Aquino Government a de facto
government, as its agent, is to promote the welfare government?
of the people and not to harm them. State as an
A. While initially, Aquino Government was a de
facto government because it was established thru
extra-constitutional measure, it nevertheless
41
Article II, Section 15, 16; Article III, Section 2; Article XIII, assumed de jure status when it is subsequently
Section 1 recognized by the international community as the
42
Article VII, Section 4; Article XVI, Section 2; Article XVIII, legitimate Government of the Philippines. Moreover,
Section 25 a new Constitution was drafted and overwhelmingly
43
Article II, Section 4; Article III, Section 7.
44
The people organized collectively as a legal association is
46
the state which sovereignty resides. Preamble; Article II, Government of the Philippine Islands v Monte de Piedad,
Section 1. 35 SCRA 738
45 47
Bacani v. NACOCO Co Kim Chan v Valdez tan Keh, 75 Phil. 113

8 |Teope, Lim &Bagaporo ©


ratified by the Filipino people and national elections
were held for that purpose.
Note:
The government under Cory Aquino and the
Freedom Constitution is a de jure government. It was
established by authority of the legitimate sovereign,
the people. It was a revolutionary government
established in defiance of the 1973 Constitution. (In
Re Letter of Associate Justice Puno, 210 SCRA 589
(1992).
The government under President Gloria
Macapagal Arroyo established after the ouster of
President Estrada is de jure government.48
GOVERNMENT OF THE PHILIPPINES Defined.
“The corporate governmental entity through
which the functions of the government are exercise
throughout the Philippines, including, save as the
contrary appears from the context, the various arms
through which political authority is made effective in
the Philippines, whether pertaining to the
autonomous regions, the provincial, city municipal,
or barangay subdivisions or other form of local
government” (Sec. 2 (1), Administrative Code of
1987).
Note: A government owned or controlled corporation
engaged in propriety functions cannot be considered
part of the Government for the purpose for purpose of
exemption from the application of the statute of
limitations.
TERRITORY
Territory is the fixed portion of the surface of the
earth inhabited by the people of the state.
The components of territory are the land mass
(terrestrial domain), the inland and external waters
(maritime and fluvial domain), the air space above
the land and waters (aerial domain).
THE PHILIPPINE 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 sea bed, the subsoil, the insular
49
shelves, and other submarine areas.”
Two (2) Parts of the National Territory:
1. The Philippine archipelago with all the islands
and waters embraced therein; and
48
Bernas Primer at 9 (2006 ed.)
49
CONSTITUTION, Art.1 ,Sec.1.
Notes in Political Law 2010
2. All other territories over which the Philippines
has sovereignty or jurisdiction.
Q. Do you consider the Spratlys Group of Islands as
part of Philippine Archipelago?
A. Spratlys Group of Islands is not part of the
Philippine Archipelago because it is too far away
from the three main islands of the Philippines. It is
found, geographically, almost in the middle of the
South China Sea. It is not part of the Philippine
Archipelago. Historically, when we talk about
Philippine Archipelago, we refer to those islands and
waters that were ceded by the Spain to the United
States by virtue of Treaty of Paris in 1898. And that
did not include the Spratlys Group of Islands yet.
Under the treaty, the islands that were ceded by
Spain were identified—the main islands—Luzon,
Visayas and Mindanao. Clearly, it did not include the
Spratlys Group of Islands.
Spratlys Group of Islands was only discovered
sometime in the 1950’s by a Filipino, Tomas Cloma.
The latter waived his rights over the islands in favor
of the Philippine Government. In effect, the
government stepped into the shoes of the
discoverer. By then President Marcos, what he did
the moment Tomas Cloma waived his rights over the
Spratlys Group of Islands, is to have the islands
immediately occupied by Philippine troops. He then
issued PD 1596, constituting the Spratlys Group of
Islands as a regular municipality claiming it the
Municipality of Kalayaan placing it under the
Province of Palawan. And then he had the elections
immediately held in the islands so from that time on
until now, we continue to hold elections there. The
Philippine exercises not only jurisdiction but also
sovereignty over the Spratlys Group of Islands, yet it
is not part of the Philippine Archipelago.
Geographically, it is too far away from the Philippine
Archipelago.
On May 20, 1980, the Philippines registered its
claim with the UN Secretariat. The Philippine claim
to the islands is justified by reason of history,
indispensable need, and effective occupation and
control. Thus, in accordance with the international
law, the Spratlys Group of islands is subject to the
sovereignty of the Philippines.
Q. Do you consider the Spratlys group of Islands as
part of our National Territory?
A. Yes. Article I of the Constitution provides: “The
national territory comprises the Philippine
archipelago, x x x, and all other territories over which
the Philippines has sovereignty or jurisdiction, x x x.”
The Spratlys Group of islands falls under the second
phrase “and all other territories over which the
Philippines has sovereignty or jurisdiction”. It is part
of our national territory because Philippines exercise
9 |Teope, Lim &Bagaporo ©

sovereignty (through election of public officials) over
Spratlys Group of Islands.
Q. What was the basis of the Philippines’ claim
over the Spratlys?
A. Through discovery of Tomas Cloma and
occupation.
MODES OF AQUISITION OF TERRITORY
1. Discovery and occupation50
Note: Doctrine of Effective Occupation—discovery
alone is not enough. Mere discovery gives only an
inchoate right to the discoverer. For title to finally vest,
discovery must be followed by effective occupation in
a reasonable time and attestation of the same.
2. Prescription51
Note: In international law, there is no rule of thumb as
to the length of time for acquisition of territory through
prescription. In this connection, consider the Grotius
Doctrine of immemorial prescription, which speaks of
uninterrupted possession going beyond memory.
3. Cession52
4. Conquest53
5. Accretion54
ARCHIPELAGIC DOCTRINE. Archipelagic Doctrine
emphasizes the unity of the land and waters by
defining an archipelago either as group of islands
surrounded by waters or a body of water studded by
islands (STRAIGHT BASELINE METHOD). The waters
of the inward side of the baseline or within baselines
regardless of breadth or dimensions are part of the
internal waters.
Purposes of Archipelagic Doctrine
a. Territorial Integrity
b. National Security
c. Economic reasons
It is said that the purpose of archipelagic
doctrine is to protect the territorial integrity of the
archipelago. Without it, there would be “pockets
50
Discovery and Occupation which are terra nullius (land
belonging to no one)
51
Prescription; Territory may also be acquired through
continuous and uninterrupted possession over a long period
of time.
52
Cession by Treaty; Examples are Treaty of Paris, treaty
between France and US ceding Louisiana to the latter and
treaty between Russia and US ceding Alaska to the latter
53
Conquest or Subjugation (conquistadores)—this is no
longer recognized, inasmuch as the UN Charter prohibits
resort to threat or use of force against the territorial integrity
or political independence of any state
54
Accretion; It is the increase in the land area of the State,
either through natural means, or artificially, through human
labor.
Notes in Political Law 2010
of high seas” between some of our islands and
islets, thus foreign vessels would be able to pass
through these “pockets of seas” and would have
no jurisdiction over them.
Q. Differentiate archipelagic waters, territorial sea
and internal waters.
A. According to UNCLOS, Archipelagic waters refers
to areas enclosed as internal waters by using the
baseline method which had not been previously
considered as internal waters. (See Article 53 of
UNCLOS)
Territorial sea is an adjacent belt of sea with a
breadth of 12 nautical miles measured from the
baselines of a state and over which the state has
sovereignty. (Article 2, 3 of UNCLOS)
Internal waters refer to “all waters landwards from
the baseline of the territory.” Is from which the
breadth of territorial sea is calculated. (Brownlie,
Principles of PIL) No right of innocent passage for
foreign vessels exists in the case of internal waters.
(Harris, Cases and Material on International Law, 5th
ed., 1998, p.407)
Under Section 1, Article I of the 1987 Constitution,
the internal waters of the Philippines consist of the
waters around between and connecting the islands
of the Philippine archipelago regardless of their
breadth and dimensions including the waters in
bays, rivers, and lakes.
Q. Distinguish briefly but clearly between the
contiguous zone and the exclusive economic zone.
A. Contiguous zone is a zone contiguous to the
territorial sea and extends up to twelve nautical
miles from the territorial sea and over which the
coastal state may exercise control necessary to
prevent infringement of its customs, fiscal,
immigration or sanitary laws and regulations within
its territory or territorial sea. (Article 33of the
Convention on the Law of the Sea.)
The EEZ extends 200 nautical miles from the
baseline. The EEZ is recognized in the UN Convention
on the Law of the Sea. Although it is not part of the
national territory, exclusive economic benefit is
reserved for the country within the zone.
By virtue of PD 1599, the Philippine declares that it
has sovereign rights to explore, exploit, conserve
and manage the natural resources of the seabed,
subsoil, and superjacent waters. Other states are
prohibited from using the zone except for navigation
and overflight; laying of submarine cables and
pipeline, and other lawful uses related to navigation
and communication.
Q. Distinguish the flag state and the flag of
convenience
10 |Teope, Lim &Bagaporo ©

A. Flag state means a ship has the nationality of the
flag of the state it flies, but there must be a genuine
link between the state and the ship. (Article 91 of
the Convention on the Law of the Sea)
Flag of convenience refers to a state with which
a vessel is registered for various reasons such as low
or non-existent taxation or low operating costs
although the ship has no genuine link with the state.
(Harris, Cases and Materials on International Law,
5th ed., 1998, p. 425.)
SOVEREIGNTY
Sovereignty is the supreme and uncontrollable
power inherent in a state by which that state is
governed.
Kinds:
 Legal55
 Political56
 Internal57
 External58
Characteristics:
It is permanent, exclusive, comprehensive,
absolute, indivisible, inalienable, and
imprescriptible.59
Note: These characteristics are only true in DOMESTIC
SPHERES but NOT in with respect to INTERNATIONAL
LAW.
Q. Distinguish sovereignty from dominion.
A. Sovereignty is the right to exercise the functions
of a State to the exclusion of any other State. It is
often referred to as the power of imperium, which is
defined as the government authority possessed by
the State. On the other hand, dominion, or
dominium, is the capacity of the State to own or
55
Cruz: Legal sovereignty is the authority which has the
power to issue final commands. In our country, the Congress
is the legal sovereign.
Bernas: Legal sovereignty is the supreme power to affect
legal interests either by legislative, executive or judicial
action. This is lodged in the people but is normally exercised
by state agencies.
56
Sum total of all the influences of a State, legal and non-
legal which determine the course of law
57
It refers to the power of the State to control its domestic
affairs. It is the supreme power over everything within its
territory.
58
Also known as Independence; which is freedom from
external control. It is the power of State to direct its relations
with other States.
59
Laurel v. Misa, 77 Phil 856.
Notes in Political Law 2010
acquire property such as lands and natural
resources.60
Q. Is the Sovereignty really absolute?
A. While sovereignty has traditionally been deemed
absolute and all encompassing on the domestic
level, it is subject to restrictions and limitations
voluntarily agreed to by the Philippines, expressly or
impliedly, as a member of the Family of Nations. So
these are the limitations of the sovereignty in the
field of international relations: (1) limitations
brought about by the entry into treaties with other
states; (2) limitations brought about by joining the
Family of Nations. 61
CONCEPT OF SOVEREIGN AS AUTOLIMITATION
“The Philippines renounces war as an instrument
of national policy, adopts the generally accepted
principles of international law as part of the law of
the land and adheres to the policy of peace, equality,
justice, freedom, cooperation, and amity with all
nations.”62
PACTA SUNT SERVANDA
The international agreements must be
performed in good faith. A treaty engagement is not
a mere moral obligation but creates a legally binding
obligation on the parties. A state which has
contracted a valid international agreement is bound
to make in its legislation such modification as may
be necessary to ensure fulfillment of the obligation
undertaken.
Effects in Change of Sovereignty: Political laws are
abrogated; municipal laws remain in force.
Effects of Belligerent Occupation: No change in
sovereignty.
Note: Since the political laws were merely suspended,
they were subject to revival upon the return of the
sovereign under the DOCTRINE OF JUS
POSTILIMINUM.
Q. What is the Doctrine of Jus Postiliminum?
A. Those taken beyond boundary will lose their
status but will regain upon its return to the
boundary.
GENERAL RULE: The rule that political laws are
merely suspended does NOT APPLY to the members
of the Armed Forces who remained subjects of
60
Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary
of DENR, G.R. No. 135385, Dec. 6, 2000, En Banc
61
Tañada vs. Angara GR. No. 118295 May 1997
62
CONSTITUTION, Article 2 Section 2
11 |Teope, Lim &Bagaporo ©

Articles of War as the National Defense Act, even
during the Japanese occupation. Such rule applies
only to the CIVILIANS in the occupied territory.63
EXCEPT: Law on TREASON (breach of allegiance to
sovereign as shown by the external acts of giving aid
to the enemies). It is a species of political law yet it
remained valid and effective because it is a war
offense64
Note: As for judicial decisions the same are valid during
the occupation and even beyond except those of a
political complexion, which are automatically annulled
65
upon the restoration of the legitimate authority.
Effect of Revolutionary Government: It is bound by
no constitution. However, it did not repudiate the
Covenant or Declaration in the same way it
repudiated the Constitution. As the de jure
government, the revolutionary government could
not escape responsibility for the State’s good faith
compliance with its treaty obligations under
international law. During the interregnum when no
constitution or Bill of Rights existed, directives and
orders issued by government officers did not exceed
the authority granted them by the revolutionary
government. The directives or orders should not
have also violated the Covenant or the Declaration.
66
Jurisdiction
Jurisdiction is the manifestation of sovereignty.
The jurisdiction of the state is understood as both its
authority and the sphere of the exercise of that
authority.
Kinds:
1. Territorial jurisdiction- authority of the state to
have all persons and things within its territorial
limits to be completely subject to its control
and protection67
2. Personal jurisdiction- authority of the state
over its nationals, their persons, property, and
63
RUFFY v. CHIEF OF STAFF, PHIL. ARMY ET AL., GR NO. L-533
August 1946
64
LAUREL v. MISA, GR NO. L-409, January 1947
65
Cruz, Philippine Political Law, p. 28 (1995 ed.)
66
Republic vs. Sandiganbayan, G.R. No. 104768, July 21, 2003
67
Exempt are:
1. Foreign states, heads of state, diplomatic
representatives, and consuls to a certain degree;
2. Foreign state property, including embassies, consulates,
and public vessels engaged in non-commercial activities;
3. Acts of state;
4. Foreign merchant vessels exercising the rights of
innocent passage or involuntary entry, such as the
arrival under stress;
5. Foreign armies passing through or stationed in its
territory with its permission;
6. Such other persons or property, including organizations
like the United Nations, over which it may, by
agreement, waived jurisdiction
Notes in Political Law 2010
acts whether within or outside its territory (e.g.
Art. 15, CC)
3. Extra-territorial jurisdiction- authority of the
State over persons, things, or acts, outside its
territorial limits by reason of their effect to its
territory
Juristic Theory of Sovereignty
The legalistic and analytical view of sovereignty
considers the state as a corporate entity, a juridical
person. It takes the state purely as a legal organism.
It does not have anything to do at all with its social
and historical background.
“Sovereignty resides in the PEOPLE”
The “people” in the sense in which it is used here
refers to the entire citizenry considered as a unit.
Q. What constitutes an Act of the State?
A. An act of state is done by the sovereign power
of a country, or by its delegate, within the limits
vested in him. It cannot be questioned or made the
subject of legal proceedings in a court of law.
Note: Within particular reference to Political Law, an
act of State is an act done by the political departments
of the government and not subject to judicial review.
An illustration is the decision of the President, in the
exercise of his diplomatic power, to extend recognition
68
to a newly-established foreign State or government.
Q. When are acts of persons considered “State
action” covered by the Constitution?
A. In constitutional jurisprudence, the act of
persons distinct from the government are
considered “state action” covered by the
Constitution (1) when the activity it engages in is a
“public function”; (2) when the government is so
significantly involved with the private actor as to
make the government responsible for his action; and
(3) when the government has approved or
authorized the action.69
Doctrine of State Immunity
Q. What is the Doctrine of State Immunity?
A. The constitution declares, rather superfluously,
that “the State may not be sued without its
consent.” This provision is merely recognition of the
sovereign character of the State and an express
68
Cruz, Philippine Political Law, p. 29 (1995 ed).
69
Manila Prince Hotel v. GSIS, 267 SCRA 408 1997
12 |Teope, Lim &Bagaporo ©

affirmation of the unwritten rule insulating it from
the jurisdiction of courts of justice.
LEGAL BASIS: As has been aptly observed by Justice
Holmes, a sovereign is exempt from suit, not
because of any formal conception or obsolete
theory, but on the logical and practical ground that
there can be no legal right as against the authority
that makes the law on which the right depends.
True, the doctrine, not too infrequently, is derisively
called “the royal prerogative of dishonesty” because
it grants the state the prerogative to defeat any
legitimate claim against it by simply invoking its non-
suability. We have had occasion to explain in its
defense, however, that a continued adherence to
the doctrine of non-suability cannot be deplored, for
the loss of governmental efficiency and the obstacle
to the performance of its multifarious functions
would be far greater in severity than the
inconvenience that may be caused private parties, if
such fundamental principle is to be abandoned and
the availability of judicial remedy is not to be
accordingly restricted.70
In the case of U.S v. Ginto, SC held that even if it
is not expressly provided in Article 16 section 3, that
the state may not be sued without its consent, still
we would be bound by the said doctrine because it is
one of the generally accepted principles of
international law. This is an affirmation of our
adherence to the “doctrine of incorporation.” That
being the case, the “doctrine of state immunity” also
becomes part of the laws of the land.71
Note: The Doctrine of State Immunity from Suit also
applies to foreign governments; you cannot sue them
before our local courts, unless it waves its immunity
from suit.
The added basis in this case is the “principle of
sovereign equality of the States, under which one State
cannot assert jurisdiction over another in violation of
the maxim par in parem non habet imperium.
72
Q. How is the state immunity from suit waived?
A. First, by express waiver through the enactment
by Congress of a general or special law. Second is by
implied waiver.
Fundamental Principles and State Policies
70
Department of Agriculture v. NLRC, 227 SCRA 693, Nov. 11,
1993
71
Sandoval, 2008: Pre-bar Lecture in Political Law
72
Cruz, Philippine Political Law, p. 29 (2001 ed.)
Notes in Political Law 2010
Note: The distinction between principles and polices is
of little significance because not all of the six
“principles” are self-executory and some of the
“policies” already anchor justiciable rights.
73
Q. What are self-executing and non-self executing
provisions of the Constitution?
A. A provision which lays down a general principle,
such as those found in Article II of the 1987
Constitution, is usually not self-executing. But a
provision which is complete in itself and becomes
operative without the aid of supplementary or enabling
legislation, or that which supplies sufficient rule by
means of which the right it grants may be enjoyed or
protected, is self-executing. Thus a constitutional
provision is self-executing if the nature and extent of
the right conferred and the liability imposed are fixed
by the Constitution itself, so that they can be
determined by an examination and construction of its
terms, and there is no language indicating that the
74
subject is referred to the legislature for action.
PRINCIPLES75
Democracy and Republicanism
Section 1. The Philippines is a democratic and republican
State. Sovereignty resides in the people and all government
authority emanates from them.
Republic is a representative government run by the
people and for the people.
Republican state is a state wherein all government
authority emanates from the people and is exercised
by representatives chosen by the people.
Manifestations of Republicanism
1. Ours is a government of laws and not of
men.76
2. Rule of Majority (Plurality in elections)
3. Accountability of public officials
4. Bill of Rights
5. Legislature cannot pass irrepealable laws
6. Separation of powers
Democratic State
In the view of the new Constitution, the
Philippines is not only a representative or republican
state but also shares some aspects of direct
democracy such as “initiative and referendum”. The
word democratic is also a monument to the
February Revolution which re-won freedom through
direct action of the people.
73
Bernas Commentary, p 37(2003 ed.).
74
Manila Prince Hotel v. GSIS, 267 SCRA 408, 1997
75
Principles are binding rules which must be observed in the
conduct of the government.
76
Villavicencio v. Lukban, 39 Phil 778
13 |Teope, Lim &Bagaporo ©

Constitutional Authoritarianism
Constitutional authoritarianism as understood
and practiced in the Marcos regime under the 1973
constitution was the assumption of extraordinary
powers by the President, including legislative and
judicial and even constituent powers.77
Q. Is constitutional authoritarianism compatible
with a republican state?
A. Yes if the Constitution upon which the Executive
bases his assumption of power is a legitimate
expression of the people’s will and if the Executive
who assumes power received his office through a
valid election by the people.78
Renunciation of War/ Incorporation Clause
“The Philippines renounces war as an instrument of national
policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to
the policy of peace, equality, justice, freedom, cooperation,
and amity with all nations.” (Art. 2 Sec.2)
Three (3) parts:
1. Renunciation of war—the power to wage a
defensive war is of the very essence of
sovereignty;
2. Adoption of the principles of international
law;
3. Adherence to a policy of peace, equality,
justice, freedom, cooperation & amity
The second part is nothing more than a formal
acceptance of a principle to which all civilized
nations must conform.
The third part is called the “selfish policy”—the
guiding principle of Philippine foreign policy is the
national interest. However, this is tempered with
concern for “equality, peace, freedom and justice.
Note: The Philippines only renounces AGGRESSIVE war
as an instrument of national policy. It does not
renounce defensive war.
As member of United Nations, the Philippines does
not merely renounce war but adheres to Article 2(4) of
the UN charter which says: “All Members shall refrain
in their international relations from the threat or use of
force against the territorial integrity or political
independence of any state, or in any other manner
inconsistent with Purposes of the United Nations.”
Doctrine of Incorporation
The doctrine where the generally accepted
principles of international law are made part of the
77
Bernas Primer at 12 (2006 ed.)
78
Ibid.,
Notes in Political Law 2010
law of the land either by express provision of the
Constitution or by means of judicial declaration or
fiat. The doctrine is applied whenever municipal
tribunals or local courts are confronted with
situations in which there appears to be a conflict
between a rule of international law and the
provisions of the Constitution or statute of a State.
Note: Efforts should first be exerted to harmonize
them so as to give effect to both. In case of conflict
between international law and municipal law, the latter
shall prevail. However, the doctrine dictates that rules
of international law are given equal standing with, and
are not superior to, national legislative enactments.
Doctrine of Auto-limitation
It is the doctrine where the Philippines adheres
to principles of international law as a limitation to
the exercise of its sovereignty.
Lex posterior derogate priori—in States where the
constitution is the highest law of the land, both
statutes and treaties may be invalidated if they are
in conflict with the Constitution.79
Philip Morris, Inc. vs. CA, the fact that the
international law has been made part of the law of
the land does not by any means imply the primacy of
international law over national law in the municipal
sphere.
Civilian Supremacy Clause
“(1) Civilian authority is, at all times, supreme over
the military.
The (2) Armed Forces of the Philippines is the
protector of the people and the State. Its goal is to
secure the sovereignty of the State and the integrity
of the national territory.” (Art. 2 Sec. 3)
– This defines the role of the armed forces in the
state.
1. As protector of the people and the State;
2. To secure the sovereignty of the State and
the integrity of the national territory;
3. They may be called to prevent or suppress
lawless violence, invasion or rebellion;
4. All Members of the armed forces shall take
an oath or affirmation to uphold and defend
the Constitution
Q. Does this mean that the military has no military
role?
A. Bernas: The military exercise of political power
can be justified as a last resort—when civilian
authority has lost its legitimacy.
79
Secretary of Justice vs. Lantion, G.R. No. 139465, January
18, 2000
14 |Teope, Lim &Bagaporo ©

Q. Is the PNP covered by the same mandate under
Article II, Section 3?
A. No. This provision is specifically addressed to
the AFP and not to the PNP, because the latter is
separate and distinct from the former. 80
Note: The lead statement in this provision is the civilian
supremacy clause. Besides, this is backed up by Art.2
Sec.1 “The Philippines is a democratic and republican
State. Sovereignty resides in the people and all
government authority emanates from them”.
Q. The President issued Letter of Instruction (LOI)
ordering the deployment of members of the
Philippine Marines in the metropolis to conduct joint
visibility patrols with members of the Philippine
National Police in various shopping malls. Will this
not violate the civilian supremacy clause under
Section 3, Article II of the Constitution? Does this
not amount to an "insidious incursion" of the
military in the task of law enforcement in violation of
Section 5(4), Article XVI of the Constitution?
A. The deployment of the Marines does not
constitute a breach of the civilian supremacy clause.
The calling of the marines in this case constitutes
permissible use of military assets for civilian law
enforcement. x x x The limited participation of the
Marines is evident in the provisions of the LOI itself,
which sufficiently provides the metes and bounds of
the Marines' authority. It is noteworthy that the
local police forces are the ones in charge of the
visibility patrols at all times, the real authority
belonging to the PNP. In fact, the Metro Manila
Police Chief is the overall leader of the PNP-
Philippine Marines joint visibility patrols. Under the
LOI, the police forces are tasked to brief or orient
the soldiers on police patrol procedures. It is their
responsibility to direct and manage the deployment
of the Marines. It is, likewise, their duty to provide
the necessary equipment to the Marines and render
logistical support to these soldiers. In view of the
foregoing, it cannot be properly argued that military
authority is supreme over civilian authority.
Moreover, the deployment of the Marines to
assist the PNP does not unmake the civilian
character of the police force. Neither does it
amount to an “insidious incursion” of the military in
the task of law enforcement in violation of Section
5[4], Article XVI of the Constitution.
80
Record of the Constitutional Commission, Volume V, p.
296; Manalo v. Sistoza, 312 SCRA 239
Notes in Political Law 2010
In this regard, it is not correct to say that
General Angelo Reyes, Chief of Staff of the AFP, by
his alleged involvement in civilian law enforcement,
has been virtually appointed to a civilian post in
derogation of the aforecited provision. The real
authority in these operations, as stated in the LOI, is
lodged with the head of a civilian institution, the
PNP, and not with the military. Such being the case,
it does not matter whether the AFP Chief actually
participates in the Task Force Tulungan since he
does not exercise any authority or control over the
same. Since none of the Marines was incorporated
or enlisted as members of the PNP, there can be no
appointment to a civilian position to speak of.
Hence, the deployment of the Marines in the joint
visibility patrols does not destroy the civilian
character of the PNP.
Considering the above circumstances, the
Marines render nothing more than assistance
required in conducting the patrols. As such, there
can be no “insidious incursion” of the military in
civilian affairs nor can there be a violation of the
civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to
civilian authorities in various forms persists in
Philippine jurisdiction. The Philippine experience
reveals that it is not averse to requesting the
assistance of the military in the implementation and
execution of certain traditionally “civil” functions. X
xx some of the multifarious activities wherein
military aid has been rendered, exemplifying the
activities that bring both the civilian and the military
together in a relationship of cooperation, are:
a) Elections;
b) Administration of the Philippine National Red
Cross;
c) Relief and rescue operations during calamities
and disasters;
d) Amateur sports promotion and development;
e) Development of the culture and the arts;
f) Conservation of natural resources;
g) Implementation of the agrarian reform
program;
h) Enforcement of customs laws;
i) Composite civilian-military law enforcement
activities;
j) Conduct of licensure examinations;
k) Conduct of nationwide tests for elementary
and high school students;
l) Anti-drug enforcement activities;
m) Sanitary inspections;
n) Conduct of census work;
o) Administration of the Civil Aeronautics Board;
p) Assistance in installation of weather
forecasting devices;
15 |Teope, Lim &Bagaporo ©

q) Peace and order policy formulation in local
government units.
This unquestionably constitutes a gloss on
executive power resulting from a systematic,
unbroken, executive practice, long pursued to the
knowledge of Congress and, yet, never before
questioned. What we have here is mutual support
and cooperation between the military and civilian
authorities, not derogation of civilian supremacy.
In the United States, where a long tradition of
suspicion and hostility towards the use of military
force for domestic purposes has persisted and
whose Constitution, unlike ours, does not expressly
provide for the power to call, the use of military
personnel by civilian law enforcement officers is
allowed under circumstances similar to those
surrounding the present deployment of the
Philippine Marines.81
Section 4. The prime duty of the Government is to serve and
protect the people. The Government may call upon the people
to defend the State and, in the fulfillment thereof, all citizens
may be required, under conditions provided by law, to render
personal, military or civil service.
 “Strong fences make good neighbors.” The idea
Q. Do the Philippines renounces defensive war?
A. No, because it is duty bound to defend its
citizens. Under the Constitution, the prime duty of
the government is to serve and protect the people.
Posse Commitatus—it is the power of the state to
require all able-bodied citizens to perform civic duty
to maintain peace and order.
In People vs. Lagman, 66 Phil. 13, the accused in
this case, prosecuted for failure to register for
military service under the National Defense Act,
assailed the validity of the Act. The Supreme Court
upheld the law on the basis of the compulsory
military and civil service provision of then 1935
Constitution. It said that: “x x x. The duty of the
Government to defend the State cannot be
performed except through an army. To leave the
organization of an army to the will of the citizens
would be to make this duty to the Government
excusable should there be no sufficient men who
volunteer to enlist therein…x x x the right of the
Government to require compulsory military service
is a consequence of its duty to defend the State and
is reciprocal with its duty to defend the life, liberty,
and property of the citizen. x x x.”
Section 5. The maintenance of peace and order, the
protection of life, liberty, and property, and promotion of the
general welfare are essential for the enjoyment by all the
people of the blessings of democracy.
81
IBP v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15,
2000, En Banc [Kapunan]
Notes in Political Law 2010
Note: Section 5 is not a self-executing provision. It is
merely a guideline for legislation.82
Right to bear arms
The right to bear arms is a statutory, not a
constitutional right. The license to carry a firearm is
neither a property nor a property right. Neither does
it create a vested right. Even if it were a property
right, it cannot be considered absolute as to be
placed beyond the reach of police power. The
maintenance of peace and order, and the protection
of the people against violence are constitutional
duties of the State, and the right to bear arms is to
be construed in connection and in harmony with
these constitutional duties.83
Separation of Church and State
Section 6. The separation of Church and State shall be
inviolable.
Rationale:
is to delineate boundaries between the two
institutions and thus avoid encroachments by one
against the other because of a misunderstanding of
the limits of their respective exclusive jurisdictions.84
Separation of Church and State is reinforced by:
1. Freedom of Religion Clause (Article III, Section
5);
2. Religious sect cannot be registered as a political
party (Article IX-C, Section 2(5));
3. No sectoral representatives from the religious
sector. (Article VI, Section 5 (2));
4. Prohibition against appropriation against
sectarian benefit (Article VI, 29(2))
Exceptions:
1. Churches, parsonages, etc. actually, directly
and exclusively used for religious purposes shall
be exempt from taxation. (Article VI, Section
28(3));
2. When priest, preacher, minister or dignitary is
assigned to the armed forces, or any penal
institution or government orphanage or
leprosarium, public money may be paid to
them. (Article VI, Section 29(2));
3. Optional religious instruction for public
elementary and high school students (Article
XIV, Section 3(3));
4. Filipino ownership requirement for education
institutions, except those established by
82
Kilosbayan v. Morato
83
Chavez v. Romulo, 2004
84
Cruz, Philippine Political Law, p. 65 (1995 ed).
16 |Teope, Lim &Bagaporo ©

religious groups and mission boards (Article
XIV, Section 4(2)).
An ecclesiastical affair involves the relationship
between the church and its members and relates to
matter of faith, religious doctrines, worship and
governance of the congregation. Examples of these
affairs in which the State cannot meddle are
proceedings for excommunication, ordination of
religious ministers, administration of sacraments,
and other activities to which is attached religious
significance. In this case, what is involved is the
relationship of the church as an employer and the
minister as an employee. It is purely secular and has
no relation whatsoever with the practice of faith,
worship or doctrine of the church.85
STATE POLICIES86
Section 7. The State shall pursue an independent foreign
policy. In its relations with other states, the paramount
consideration shall be national sovereignty, territorial
integrity, national interest, and the right to self-
determination.
Freedom from Nuclear Weapons
Section 8. The Philippines, consistent with the national
interest, adopts and pursues a policy of freedom from nuclear
weapons in its territory.
Scope of Policy
The policy includes the prohibition not only of
the possession, control, and manufacture of nuclear
weapons but also nuclear arms tests.
Exception to the Policy
Exception to this policy may be made by the
political department but it must be justified by the
demands of the national interest. The policy does
not prohibit the peaceful use of nuclear energy.
Implication of the Policy for the Presence of
American Troops
Any new agreement on bases or the presence of
the troops, if ever there is one, must embody the
basic policy of freedom from nuclear weapons.
Moreover, it would be well within the power of
government to demand ocular inspection and
removal of nuclear arms.87
Section 9. The State shall promote a just and dynamic social
order that will ensure the prosperity and independence of the
nation and free the people from poverty through policies that
provide adequate social services, promote full employment, a
rising standard of living, and an improved quality of life for
all.
85
Austria vs. NLRC and CPU Mission Corp. of the 7th Day
Adventists, G.R. No. 124382, August 16, 1999
86
Policies are guidelines for the orientation of the state.
87
Bernas Primer at 15 (2006 ed.)
Notes in Political Law 2010
Social Justice
Section 10. The State shall promote social justice in all phases
of national development.
Definition of Social Justice
Social Justice is neither communism, nor
despotism, nor atomism, nor anarchy, but the
humanization of the laws and the equalization of the
social and economic force by the State so that justice
in its rational and objectively secular conception may
at least be approximated.” (Calalang v. Williams)
Social justice simply means the equalization of
economic, political, and social opportunities with
special emphasis on the duty of the state to tilt the
balance of social forces by favoring the
disadvantaged in life.88
Section 11. The State values the dignity of every human
person and guarantees full respect for human rights.
Section 12. The State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the life
of the mother and the life of the unborn from conception. The
natural and primary right and duty of parents in the rearing of
the youth for civic efficiency and the development of moral
character shall receive the support of the Government.
Section 13. The State recognizes the vital role of the youth in
nation-building and shall promote and protect their physical,
moral, spiritual, intellectual, and social well-being. It shall
inculcate in the youth patriotism and nationalism, and
encourage their involvement in public and civic affairs.
Section 14. The State recognizes the role of women in nation-
building, and shall ensure the fundamental equality before
the law of women and men.
Section 15. The State shall protect and promote the right to
health of the people and instill health consciousness among
them.
Balanced and Healthful Ecology
Section 16. The State shall protect and advance the right of
the people to a balanced and healthful ecology in accord with
the rhythm and harmony of nature.
Q. Is the right to a balanced and healthful ecology
any less important than any of the civil and political
rights enumerated in the Bill of Rights? Explain.
A. While the right to a balanced and healthful
ecology is to be found under the Declaration of
Principles and State Policies and not under the Bill of
Rights, it does not follow that it is less important
than any of the civil and political rights enumerated
in the latter. Such a right belongs to a different
category of rights for it concerns nothing less than
88
Bernas Primer at 16 (2006 ed.)
17 |Teope, Lim &Bagaporo ©
 Notes in Political Law 2010

self-preservation and self-perpetuation. These basic

rights need not even be written in the Constitution Section 18. The State affirms labor as a primary social
for they are assumed to exist from the inception of economic force. It shall protect the rights of workers and
humankind. 89 promote their welfare.

On this basis too, the SC upheld the

empowerment of the Laguna Lake Development Self-reliant and independent Economy
Authority (LLDA) to protect the inhabitants of the
Laguna Lake Area from the deleterious effects of Section 19. The State shall develop a self-reliant and
pollutants coming from garbage dumping and the independent national economy effectively controlled by
discharge of wastes in the area as against the local Filipinos.
autonomy claim of local governments in the area.
This is a guide for interpreting provisions on
(LLDA v.CA, 1995)
national economy and patrimony. Any doubt must
be resolved in favor of self-reliance and
Q. The Province of Palawan and the City of Puerto independence and in favor of Filipinos.
Princesa enacted ordinances prohibiting the catching
A petrochemical industry is not an ordinary
and/or exportation of live tropical fishes, and
investment opportunities, it is essential to national
imposing penalties for violations thereof, in order to
interest. (The approval of the transfer of the plant
stop the illegal practice of cyanide fishing which
from Bataan to Batangas and authorization of the
destroys the corals and other marine resources.
change of feedstock from naptha only to naptha
Several fishermen apprehended for violating the
and/or LPG do not prove to be advantageous to the
ordinances in question challenged their
government. This is a repudiation of the
constitutionality contending that the ordinances
independent policy of the government to run its
violated their preferential right as subsistence and
own affairs the way it deems best for national
marginal fishermen to the use of our communal
interest.) 91
marine resources guaranteed by the Constitution,
under Section 7, Article XIII. Will you sustain the
challenge? Q. Does the Constitutional policy of a “self-reliant
and independent national economy” rule out foreign
A. The “preferential right” of subsistence or competition?
marginal fishermen to the use of marine resources is
not absolute. In accordance with the Regalian A. The constitutional policy of a “self-reliant and
Doctrine, marine resources belong to the State, and, independent national economy” does not
pursuant to the first paragraph of Section 2, Article necessarily rule out the entry of foreign investments,
XII of the Constitution, their “exploration, goods and services. It contemplates neither
development and utilization x x x shall be under the “economic seclusion” nor “mendicancy in the
full control and supervision of the State.” Moreover, international community.”
their mandated protection, development and
Aside from envisioning a trade policy based on
conservation x x x imply certain restrictions on
“equality and reciprocity,” the fundamental law
whatever right of enjoyment there may be in favor
encourages industries that are “competitive in both
of anyone. What must be borne in mind is the State
domestic and foreign markets,” thereby
policy enshrined in the Constitution regarding the
demonstrating a clear policy against a sheltered
duty of the State to protect and advance the right of
domestic trade environment, but one in favor of the
the people to a balanced and healthful ecology in
gradual development of robust industries that can
accord with the rhythm and harmony of nature
compete with the best in the foreign markets.92
(Section 16, Article II). The ordinances in question
(Tanada v. Angara, 272 SCRA 18 [1997])
are meant precisely to protect and conserve our
marine resources to the end that their enjoyment Section 20. The State recognizes the indispensable role of the
may be guaranteed not only for the present private sector, encourages private enterprise, and provides
generation, but also for the generations to come. incentives to needed investments.
The right to a balanced and healthful ecology carries
with it a correlative duty to refrain from impairing Section 21. The State shall promote comprehensive rural
development and agrarian reform.
the environment.90
Section 22. The State recognizes and promotes the rights of
Section 17. The State shall give priority to education, science indigenous cultural communities within the framework of
and technology, arts, culture, and sports to foster patriotism national unity and development.
and nationalism, accelerate social progress, and promote
total human liberation and development.

89
Oposa v. Factoran, Jr., 224 SCRA 792 [1993]
90 91
Tano v. Gov. Salvador P. Socrates, G.R. No. 110249, Aug. Garcia v. BOI
92
21, 1997 Tanada v. Angara, 272 SCRA 18 [1997]

18 |Teope, Lim &Bagaporo ©


Section 23. The State shall encourage non-governmental,
community-based, or sectoral organizations that promote the
welfare of the nation.
Section 24. The State recognizes the vital role of
communication and information in nation-building.
Section 25. The State shall ensure the autonomy of local
governments.
“The State shall guarantee equal access to opportunities
for public service and prohibit political dynasties as may be
defined by law”. (Art. 2 Sec. 26)
Note: Section 26 of Article II neither bestows a right
nor elevates the privilege to the level of an enforceable
right. Like the rest of the policies enumerated in Article
II, the provision does not contain any judicially
constitutional right but merely specifies a guideline for
legislative or an executive action. The disregard of this
provision does not give rise to any cause of action
93
before the courts
Section 27. The State shall maintain honesty and integrity in the
public service and take positive and effective measures against graft
and corruption.
Section 28. Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of all its
transactions involving public interest.
Principle of Separation of Powers
Essence:
In essence, separation of powers means
that legislation belongs to Congress, execution to
the executive, settlement of legal controversies to
the judiciary. Each is prevented from invading the
domain of others.94
Division and Assignment:
Its starting point is the assumption of the
division of the functions of the government into
three distinct classes—the executive, the legislative
and the judicial. Its essence consists in the
assignment of each class of functions to one of the
three organs of government.95
Rationale:
The underlying reason of this principle is
the assumption that arbitrary rule and abuse of
authority would inevitably result from the
concentration of the three powers of government in
the same person, body of persons or organ.96
History:
Separation of powers became the pith and
core of the American system of government largely
through the influence of the French political writer
93
Pamatong vs COMELEC, G.R. No. 161872, April 2004
94
Bernas, Commentary 656, 2003 ed.
95
Vicente Sinco, Philippine Political Law 131, 10th ed., 1954.
96
Vicente Sinco, Philippine Political Law 131, 10th ed., 1954.
Notes in Political Law 2010
Montesquieu. By the establishment of the American
sovereignty in the Philippines, the principle was
introduced as an inseparable feature of the
governmental system organized by the United States
in this country.97
Q. What is the Doctrine of Separation of Powers?
A. The doctrine of separation of powers is intended to
prevent a concentration of authority in one person or
group of persons that might lead to an irreversible
error or abuse in its exercise to the detriment of our
republican institutions; intended to (1) secure action,
(2) forestall overaction, (3) prevent despotism, (4)
obtain efficiency; characteristic of despotism.
Note: It is the interdependence among the three
branches of the government.
BLENDING OF POWERS – powers are not confined
exclusively within one department but are in fact
assigned to or shared by several departments
Examples:
1) Power of appointment which can be exercised
by each department and be rightfully exercised
by each department over its own administrative
personnel
2) General Appropriations Law – President
prepares the budget which serves as the basis of
the bill adopted by Congress
3) Amnesty granted by the President requires the
concurrence of the majority of all the members
of the Congress
4) COMELEC does not deputize law-enforcement
agencies and instrumentalities of the
government for the purpose of ensuring free,
orderly, honest, peaceful and credible elections
alone (consent of the President is required)
Limitations:
1. System of Checks and Balances
2. Existence of overlapping powers98
Note: Doctrine of separation of powers is the collar
system of checks and balances
97
US v. Bull, 15 Phil 7, 27.
98
The power of appointment is one of these. Although this is
executive in nature, it may however be validly exercised by
any of the three departments in selecting its own
subordinates precisely to protect its independence.
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