2010 BAR MATTER

1987 CONSTITUTIONAL LAW

(2010 EDITION)
BRANCH OF PUBLIC LAW WHICH DEALS WITH THE ORGANIZATION AND
OPERATIONS OF THE GOVERNMENT ORGANS OF THE STATE AND
DEFINES THE RELATIONS OF THE STATE WITH THE INHABITANTS OF ITS
TERRITORY.

POINTERS WITH REGARD NATIONAL TERRITORY:

1. SABAH CLAIM (RA 5446)

-

it is by virtue of the right of the Sultanate of Sulu

the Republic of the Philippines is not exercising jurisdiction,
but it did not abandon its claim of sovereignty.

THE NATIONAL TERRITORY OF THE PHILIPPINES

2. FREEDOMLAND (KALAYAAN GROUP OF ISLANDS)
THE PHILIPPINE ARCHIPELAGO
WITH ALL THE ISLANDS AND WATERS EMBRACED THEREIN
AND ALL OTHER TERRITORIES OVER WHICH THE PHILIPPINES
HAS SOVEREIGNTY OR JURISDICTION
4blue 95: It includes any territory that presently belongs or might in the future
belong to the Philippines through any of the internationally accepted modes of
acquiring territory.
CONSISTING OF ITS
TERRESTRIAL
FLUVIAL; AND
AERIAL DOMAINS
INCLUDING ITS
TERRITORIAL SEA
THE SEABED
THE SUBSOIL (THE INSULAR SHELVES AND THE OTHER
SUBMARINE AREAS)

3. SPRATLEY AND SCARBOROUGH ISSUES:

Whether we enclose one or both of these islands would result to
expansion of maritime zones and resources.
However, we have to remember that when we draw baselines (RA
9171), it should be accepted by the international community because
the latter law is a mere unilateral act of the Philippines.
It was through these craving for acceptance in the international
community that the Philippines come out with 4 options, however,
there are merely 2 options which is worth to look at:
1.

Option 1:
The Scarborough shall be enclosed and the Kalayaan group
shall be considered as a regime of islands.
These options are the position of Sen. Trillanes.

2.

Option 2:

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
4blue 95: Internal Waters are within the baseline.
4blue 95: It is the same as Archipelagic waters and the latter is peculiar to an
archipelago since the archipelagic waters connect the archipelago.
4blue 95: UNCLOS term INTERNAL waters as Archipelagic waters because it is
states that these waters are considered as sea lanes and it is where ships could pass.
2008 update: however, in the Treaty of Paris, the lines drawn from these treaties
are not boundary lines because it only focuses on the islands within the lines,
which therefore, considered all waters within the lines as internal waters.
2008 update: it was by implementing the UNCLOS (through BP 121 of 1984) that
we get a concrete boundary lines of which the international community now
accepts as our internal waters.
2008 update: the UNCLOS do not only focus on internal waters, it now
enumerates other kind of waters.

this was claimed by Tomas Cloma in his private capacity

technically speaking, it is not part of the archipelago of the
Philippines but in 1971, Pres. Marcos secretly send troops
over the islands and occupy it and in 1979, Marcos
promulgated a Presidential decree making Kalayaan part of
Palawan
4blue 95 state that we could claim it under the international
principle of effective occupation and administration.

Scarborough and the Kalayaan group are treated as regime of

islands.
These options are the official position of Malacanang and the
DFA, of which, it will minimize risk of protest from the
international community.
4blue 95: REGIME of ISLANDS: a group of islands outside
the archipelago but is part of a nations territory.
4. JOINT MARINE and SEISMIC UNDERTAKING
Seismic surveys are used to reflect waves of sound to create a very
rough picture of a formation of rock beneath the seabed.
It gives a better idea as to where to look for Petroleum.
The entrance of China and Vietnam in the undertaking, according to
4blue 95 would already constitute an exploration of which it would
be violative of the Constitution because exploration are reserved
merely to Philippine citizens and to Philippine corporations so
therefore it would diminish our sovereignty.

ARCHIPELAGO:
An archipelago is a body of water studded with islands. The Philippine
archipelago is that body of water studded with islands which is delineated in the
Treaty of Paris (1898), as amended by the Treaty of Washington (1900) and the
Treaty of Great Britain (1930).
Two elements Archipelagic principle
1.The definition of internal waters (as provided above);
2.The straight baseline method of delineating the territorial sea consists of
drawing straight lines connecting appropriate points on the coast without departing
to any appreciable extent from the general direction of the coast.
2008 notes: in archipelagic doctrine, the state is allowed to draw a baseline.

4blue 95: the importance of a baseline is to know that those inside the
baseline are internal waters.
The following (on the next page) are the other kind of waters as enumerated by
UNCLOS

4blue 95: Can a Foreigner manage technical and financial aspect of a project?
YES, as long as it is limited to managing the technicalities and the financial
aspect only of such project.
4blue 95: FILIPINIZED pertains to private
NATIONALIZED, it pertains merely to the State.

corporations,

while

IMPORTANT DISTANCES WITH RESPECT TO THE

WATERS AROUND THE PHILIPPINES
1.TERRITORIAL SEA
This is the only sea that belongs to Philippines (the subsequent
enumeration below do not belong to the Philippines).
It is a belt of the sea located between the coast and internal waters
of the coastal state on the one hand, and the high seas on the other,
extending up to 12 nautical miles from the low water mark or in
the case of archipelagic states, from the baselines.
RULE: Ships(not aircraft) of all states enjoy the right of innocent
passage through the territorial sea(not through internal waters). It is
understood, however, that the passage must be continuous and
expeditious, except in cases of force majeure. Submarines and
other underwater craft are required to navigate on the surface and
to show their flag.
4BLUE 95 notes: Criminal jurisdiction over foreign merchant
vessels shall be determined by the application of either the English
or French Rule. Innocent passage and involuntary entrance are
recognized exceptions, provided that in case of involuntary
entrance, the distress on the vessel must be real.
2. CONTIGUOUS ZONE
Extends up to 12 nautical miles from the territorial sea(so its 24
miles from the baseline). Although technically, not part of the
territory of the State, the coastal State may exercise limited
jurisdiction over the contiguous zone, to prevent infringement of
customs, fiscal, immigration or sanitary laws.

3. EXCLUSIVE ECONOMIC ZONE

Extends up to 200 nautical miles from the low-water mark or the
baselines, as the case may be.
Technically, the area beyond the territorial sea is not part of the
territory of the state, but the coastal State may exercise sovereign
rights over economic resources of the sea, seabed, subsoil,
although other states shall have freedom of navigation and overflight, to lay submarine cables and pipelines and other lawful
means.
4BLUE 95 notes: states with overlapping exclusive economic
zones are enjoined to enter into the appropriate treaty for joint
exploitation and utilization of the resources in the area.

5. HIGH SEAS
High seas are treated as res communes or res nullius, and thus, are
not territory of any particular State. The traditional view is
freedom of the high seas (they are open and available without
restriction to the use of all States for the purpose of navigation,
flight over them, laying submarine cables and pipes, fishing,
research, mining etc.
At present however, this rule is subject to regulation arising from
treaty stipulations (regulations to keep the sea from pollution or
prohibiting nuclear testing).
4BLUE 95 notes: Any dispute arising form the UN Convention on
the Law of the Sea shall be submitted for compulsory settlement to
one of the tribunals having jurisdiction:
-International Tribunal for the Law of the Sea
-International Court of Justice
-arbitral or special tribunals constituted under the UNCLOS

Jurisdiction may be exercised by the State on the high seas

over the following:
a. Its vessels:
Flag state has jurisdiction over its public vessels wherever they are,
and over its merchant vessels on the high seas. However, because
of the flags of convenience controversy, the UN Convention on
the Law of the Sea concedes that a vessel shall have the nationality
of the flag it flies, provided there is a genuine link between the
State (whose flag is flown) and the vessel.
b. Pirates: they are enemies of all mankind, they may be captured
on the open seas by the vessels of any state to whose territory they
may be brought for trial and punishment.
c. In exercise of the right to visit and search: Under the laws of
neutrality, the public vessels or aircraft of a belligerent State may
visit and search any neutral merchant vessel on the open seas and
capture it if found to be engaged in activities favorable to the other
belligerent.
d. under Doctrine of Hot Pursuit: States vessels (warships,
aircraft and other ships cleared and identifiable as being in
government service and authorized to that effect) may pursue the
offending vessel into the open seas and capture it and bring it back
to its territory.
To be lawful, the pursuit must have begun before the offending
vessel has left the territorial waters or the contiguous zone of the
coastal state and it must be continuous and unabated.

4. CONTINENTAL SHELF

Jurisdiction over other territories:

Comprises the sea bed and subsoil that extend beyond its territorial
sea to a distance of 200 miles from the baselines from which the
territorial sea is measured where the outer edge of the continental
margin does not extend up to that distance.

1.assertion of personal jurisdiction over its nationals abroad

4BLUE 95 notes: a coastal state also enjoys the right of

exploitation of oil deposits and other resources in the continental
shelf. In case the continental shelf extends to the shores of another
state, or is shared with another state, the boundary shall be
determined in accordance with equitable principles.

2.by virtue of its relation with other states, as when it establishes a

protectorate/condominium or administers trust territory or occupies
enemy territory in the course of war.
3.consequence of waiver of jurisdiction by the local state over
persons and things within the latters territory (Foreign army
stationed in the local State)
4.Principle of Extra-Territoriality: exemption of persons and things
from the local jurisdiction on the basis of international custom.

DECLARATION OF POLICIES (ART 2)

These are non self-executing sections of the Constitution (except
sec16), as such, parties cannot go to court to claim that their right
is violated or this cannot be used as a defense.

Classification of de facto governments

1.

De facto proper
a.
That government that gets possession and control
of
b.
or usurps by force or by the voice of majority
c.
the rightful legal government
d.
and maintains itself against the will of the latter.

2.

Government of paramount force

a.
That which is established and maintained by
military forces
b.
who invade and occupy a territory of the enemy
c.
in the course of war.

3.

That established as an independent government by the

inhabitants of a country who rise in insurrection against the
parent state.

SEC 1. The Philippines is a democratic and republican State.

Sovereignty resides in the people and all government authority
emanates from them.
Elements of a State (for municipal law purposes)
1.
2.
3.
4.

A community of persons, more or less numerous (PEOPLE)

Permanently occupying a definite portion of territory
(TERRITORY)
Independent of external control (SOVEREIGNTY)
Possessing an organized government to which the great body
of inhabitants render habitual obedience (GOVERNMENT)

People
1.
2.
3.
4.

A Community of persons;
Sufficient in Number;
Capable of maintaining the continued existence of the
community; and
Held together by a common bond of law.

Republican State
It is one wherein all government authority emanates from the
people and is exercised by representatives chosen by the people.

Democratic State
This merely emphasizes that the Philippines has some aspects of
direct democracy such as initiative and referendum.

Sovereignty
1.

LEGAL sovereignty
a.
The supreme power to make law.
b.
It is lodged in the people.

2.

POLITICAL sovereignty
a.
The sum total of all the influences in a state,
b.
Legal and non-legal,
c.
Which determine the course of law.

3.

According to the Principle of AUTO-LIMITATION:

Sovereignty is the property of the state-force due to
which it has the exclusive capacity of legal selfdetermination and self-restriction.

SEC. 2. The Philippines renounces war as an instrument of

national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to
the policy of peace, equality, justice, freedom, cooperation, and
amity with all nations.

Kind of war renounced by the Philippines

The Philippines only renounces AGGRESSIVE war as an
instrument of national policy. It does not renounce defensive war.
Some "generally accepted principles of international law"
recognized by the Court (it means that foreign statute is the same
footing with local laws):

Government

1.

1.
2.
3.
4.
5.

2.

That institution or aggregate of institutions

by which an independent society
makes and carries out those rules of action
which are necessary to enable men to live in a social state
or which are imposed upon the people forming that society
by those who possess the power or authority of prescribing
them.

Classification of governments
1. De jure - one established by the authority of the legitimate
sovereign
2. De facto
- one established in defiance of the
legitimate sovereign

3.

Right of an alien to be released on bail while awaiting

deportation when his failure to leave the country is due to the
fact that no country will accept him (Mejoff vs. Director of
Prisons, 90 Phil. 70)
The right of a country to establish military commissions to
try war criminals (Kuroda v. Jalondoni, 83 Phil. 171)
The Vienna Convention on Road Signs and Signals (Agustin
v. Edu, 88 SCRA 195)

Amity with all nations

This does not mean automatic diplomatic recognition of all
nations. Diplomatic recognition remains a matter of executive
discretion.

SEC 3. Civilian authority is, at all times, supreme over the

military. The Armed Forces of the Philippines is the protector
of the people and the State. Its goal is to secure the sovereignty
of the State and the integrity of the national territory.
Civilian authority/supremacy clause (1st sentence)
1.
2.

Civilian authority simply means the supremacy of the law

because authority, under our constitutional system, can only
come from law.
Under this clause, the soldier renounces political ambition.

Mark of sovereignty (2nd and 3rd sentences)

1.
2.

Positively, this clause singles out the military as the guardian

of the people and of the integrity of the national territory and
therefore ultimately of the majesty of the law.
Negatively, it is an expression of disapproval of military
abuses.

SEC 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.
SEC. 5. The maintenance of peace and order, the protection of
life, liberty and property, and the promotion of the general
welfare are essential for the enjoyment by all the people of the
blessings of democracy.
SEC. 6. The separation of Church and State shall be inviolable.
SEC. 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.
SEC. 8. The Philippines, consistent with the national interest,
adopts and pursues a policy of freedom from nuclear weapons
in its territory.

Sec 11. The state values the dignity of every human person and
guarantees full respect for human rights.
SEC. 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, etc.
Principle that the family is not a creature of the state. Protection for
the unborn
It means a stable heterosexual relationship
1.
It is not an assertion that the unborn is a legal
person.
2.
It is not an assertion that the life of the unborn is
placed exactly on the level of the life of the
mother. Hence, when it is necessary to save the
life of the mother, the life of the unborn may be
sacrificed.
3.
Under this provision, the Roe vs. Wade doctrine
allowing abortion up to the 6th month of
pregnancy cannot be adopted in the Philippines
because the life of the unborn is protected from
the time of conception.
Sec 13.State recognizes the vital role of the youth in nationbuilding and shall promote and protect 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.
Sec 14.State recognizes role of women in nation-building, and
shall ensure the fundamental equality before the law of women
and men.
Purpose is for the law to ignore sex where sex is not a relevant
factor in determining rights and duties nor is the provision meant
to ignore customs and traditions.
Sec 15. State shall protect and promote the right to health of
the people and instill health consciousness among them.

The policy does NOT prohibit the peaceful uses of nuclear energy.
Sec 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.

SELF EXECUTORY !!!

SEC. 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.
1.

Sec 10. State shall promote social justice in all phases of

national development
"Social Justice is 'neither communism, nor despotism, nor
atomism, nor anarchy,' but the humanization of laws and the
equalization of social and economic forces by the State so that
justice in its rational and objectively secular conception may at
least be approximated. Social justice means the promotion of the
welfare of all the people, the adoption by the Government of
measures calculated to insure economic stability of all the
component elements of society, through the maintenance of a
proper economic and social equilibrium in the interrelations of the
members of the community, constitutionally, through the adoption
of measures legally justifiable, or extra-constitutionally, the
exercise of powers underlying the existence of all governments on
the time-honored principle of salus populi est suprema lex."
2006 notes: for promotion of social justice see art XIII.

2.

While the right to a balanced and healthful

ecology is found under the declaration of
Principle 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. (Oposa v.
Factoran)
The right to a balanced and healthful ecology
carries with it the correlative duty to refrain from
impairing the environment. (Oposa v. Factoran)

2006 notes: violation of sec 16, an aggrieved party can go to court

and use it as a ground or defense since section 16 is the exemption
of the general rule that declaration of policies is non-self executory
2006 notes: this provision recognizes an enforceable right hence
appeal to courts has been recognize as conferring standing on
minors to challenge logging policies of the government (Oposa v
Factoran)

SEC 17. The state shall give priority to education, science and
technology, arts and culture and sports to foster patriotism and
nationalism, accelerate social progress and promote total
human liberation and development.

SEC. 26.
The State shall guarantee equal access to
opportunities for public service, and prohibit political
dynasties as may be defined by law.

4blue 95: this does not mean that the government is not free to
balance the demands of education against other competing urgent
demands.

SEC. 27. The State shall maintain honesty and integrity in the
public service and take positive and effective measures against
graft and corruption.

SEC 18. State affirms labor as a primary social economic force.

It shall protect the rights of workers and promote their
welfare.
4blue 95: it means that human factor has primacy over the nonhuman factors in production. The rights of labor are discussed in
Art XIII.

SEC 19. State shall develop a self-reliant and independent

national economy effectively controlled by Filipinos.

SEC 20.State recognizes the indispensable role of the private

sector, encourages private enterprise and provides incentives to
needed investments.
4blue 95: this is an acknowledgement of the importance of private
initiative in building the nation. However, it is not a call for official
abdication of duty to the citizenry.

SEC 21. State promotes comprehensive rural development and

agrarian reform.
4blue 95: it includes only agrarian reform. It also encompasses a
broad spectrum of social, economic, human, cultural, political and
even industrial development. Agrarian reform is discussed in Art
XIII.

SEC 22. State recognizes and promotes the rights of indigenous

cultural communities within the framework of national unity
and development.
SEC 23. State shall encourage non-governmental, community
based or sectoral organizations that promote the welfare of the
nation.
SEC 24. State recognizes the vital role of communications and
information in nation-building.

SEC 25. State shall ensure the autonomy of local governments.

SEC. 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.