CONSTITUTIONAL LAW 1 1.
The Dualist Position
Notes
(JD 1 – SP-C)
Section 2
The Philippines renounces war as an
instrument of national policy, adopts the generally
accepted principles of international law as part of
the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation,
and amity with all nations.
What is the Doctrine of Incorporation?
The doctrine of incorporation is stated in
Article II, Section 2 of the Constitution, which
states: “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.”
In Tañada v. Angara,17 the Court explained
that by the doctrine of incorporation, the country
is bound by generally accepted principles of
international law, which are considered to be
automatically part of our own laws. Under the
doctrine of incorporation, rules of international
law form part of the law of the land and no
further legislative action is needed to make such
rules applicable in the domestic sphere.18 Thus,
under the doctrine of incorporation, there is no
transformation required before customs form part of
the law of the land. As a response to Magallona’s
internalization argument, it may be argued that what
actually happens is mere recognition on the part of
the court that a customary norm exists. When a
court invokes customary norms, they are invoked as
international law concepts and not as national
principles, thus no transformation happens.
Differentiate Incorporation from Transformation
The transformation method requires that
an international law be transformed into a
domestic law through a constitutional
mechanism such as local legislation. The
incorporation method applies when, by mere
constitutional declaration, international law is
deemed to have the force of domestic law.
Differentiate Dualist from a Monoist
According to the dualist position,
international law and internal law are two
separate legal orders, existing independently of
one another.
Thus, international law and national law
operate on different levels.
Thus, international rules cannot alter or
repeal national legislation and, by the same
token, national laws cannot create, modify or
repeal international rules and neither legal order
has the power to create or alter rules of the
other.
Furthermore, in order to become binding,
international law must be “transformed” into
national law. Thus, international law cannot
directly address itself to individuals.
2. Monist Position
Under the monist position, both
international law and national law are part of
the same order, one or the other being supreme
over the other within that order.
Thus, the national and international form
one single legal order, or at least a number of
interlocking orders which should be presumed to
be coherent and consistent
In other words, there is a single system with
international law at its apex, and all national
constitutional and other legal norms below it in
hierarchy.
Because of this, there is no need for
international obligations to be “transformed”
into rules of national law.
Is the Philippines Dualist or Monist?
The Philippines is believed to follow the
dualist model. This belief is said to be justified by
the incorporation and treaty clauses of the
constitution.
What kind of war is renounced?
The Philippines only
renounces AGGRESSIVE war as an instrument of
national policy. It does not renounce defensive war.
Cases:
1. Mejoff v. Director of Prisons, 90 Phil 70
Facts:
Boris Mejoff, a Russian, was captured as a
Japanese spy by the US Army Counter
Intelligence Corps on March 18, 1948. He was
turned over to the Phil Commonwealth
Government for appropriate disposition. His case
was decided on by the Board of Commissioners of
Immigration who declared him as an illegal alien.
The Board ordered his immediate deportation.
In the meantime, he was placed in prison awaiting
the ship that will take him back home to
Russia. Two Russian boats have been requested
to bring him back to Russia but the masters
refused as they had no authority to do so. Two
years passed and Mejoff is still under detention
awaiting the ship that will take him home.
This case is a petition for habeas
corpus. However, the respondent held that the
Mejoff should stay in temporary detention as
it is a necessary step in the process of
exclusion or expulsion of undesirable aliens. It
further states that is has the right to do so for a
reasonable length of time.
Issue:
Whether Mejoff should be released from
prison awaiting his deportation.
Ruling:
The Supreme Court decided that Mejoff
be released from custody but be placed under
reasonable surveillance of the immigration
authorities to ensure that he keep peace and
be available when the Government is ready to
deport him. In the doctrine of incorporation,
the Philippines in its constitution adopts the
generally accepted principles of international
law as part of the law of Nations. Also, the
Philippines has joined the United Nations in its
Resolution entitled “Universal Declaration of
Human Rights” in proclaiming that life and
liberty and all other fundamental rights shall be
applied to all human beings. The contention that
he remains a threat of to the security of the country
is unfounded as Japan and the US or the Phils are
no longer at war.
2. Salonga v. Hermoso
JOVITO R. SALONGA, petitioner,
vs.
CAPTAIN ROLANDO HERMOSO, TRAVEL
PROCESSING CENTER, and GENERAL FABIAN
VER, respondents.
During the time of Martial Law, Jovito
Salonga filed a case for mandamus against Rolando
Hermoso of the Travel Processing Center to compel
the latter to issue a certificate of eligibility to travel
in favor of Salonga.
ISSUE:
Whether the right to travel may be
prohibited during martial law
HELD:
No. This issue became moot and academic
because it appears that Hermoso did issue and did
not deny Salonga’s request for a certificate of
eligibility to travel.
The issuance of the certificate was in
pursuant to the Universal Declaration of Human
Rights on the Right to Travel. The Philippines,
even though it is under martial law, shall in no
instance facilitate the erosion of human rights.
The Travel Processing Center should exercise the
utmost care to avoid the impression that certain
citizens desirous of exercising their constitutional
right to travel could be subjected to inconvenience
or annoyance – this is to avoid such similar cases to
face the Court which needlessly expire the Court’s
effort and time.
3. Kuroda v. Jalandoni
Facts:
Shigenori Kuroda was the highest ranking
Japanese officer stationed in the Philippines during
the Japanese occupation. He was then charged
before the Military Commission due to the cruelty
that were done against non combatant civilians and
prisoners during the war.
His trial was in pursuant to EO No. 68
which established the National War Crimes
Office and prescribing rules and regulations
governing the trial of accused war criminals.
Kuroda is questioning the legality of the
said EO arguing that the same is not provided in the
Constitution. He further underscores the fact that
the Philippines is not a signatory of the Hague
Convention on Rules and Regulations Covering
Land Warfare hence we cannot impose against him
any criminal charges because it has no laws to base
on, national or international.
Issue:
Whether Kuroda can be charged in Philippine
courts
Held:
Yes.
EO No. 68 is constitutional hence the
Philippine courts can take cognizance of the case at
bar. EO 68 is in pursuant to the constitutional
provision that stated in Article 2 of the Philippine
Constitution. The Hague Convention and other
similar conventions whose principles are generally
accepted are considered as part of the law of the
land.
4. Agustin v. Edu
LEOVILLO C. AGUSTIN,
petitioner,
vs.
HON. ROMEO F. EDU, in his capacity as Land
Transportation Commissioner; HON. JUAN
PONCE ENRILE, in his capacity as Minister of
National Defense; HON. ALFREDO L. JUINIO,
in his capacity as Minister Of Public Works,
Transportation and Communications; and HON:
BALTAZAR AQUINO, in his capacity as Minister
of Public Highways,
Respondents
Facts:
On December 2, 1974, President Marcos
issued on Letter of Instruction No. 229 requiring
all
motor vehicles to be equipped with an early
warning device which shall be used whenever a
vehicle is
stalled, disabled or parked for 30 minutes or
more.
There are two reasons for the issuance of the letter:
a) Statistics show that one of the major causes of
fatal or serious road accidents is the presence of
disabled, stalled or parked motor vehicles
without early warning device.
b) The 1968 Vienna Convention on Road Signs
and Safety
and the United Nations Organization
recommended the enactment of legislation for
the installation of road safety signs and devices.
The Philippines ratified said convention through
PD No. 207.
It was amended by Letter of Instruction No. 479
which allows owners of motor vehicles to procure
from any source as long as it fits the
specifications provided by the Land
Transportation Commission.
Respondent Edu, Land Transportation
Commissioner, issued Memorandum Circular No. 2
which provides for the implementation of LOI 229
as amended,
Petitioner, an owner of a Volkswagen
Beetle Car Model 13035, already equipped when it
came out from the assembly lines with blinking
lights which could well serve as early warning
device, assailed
LOI 229 and Memorandum Circular No. 2 and filed
a petition for prohibition with writ of prohibitory
and/or mandatory injunction on the following
grounds:
a) LOI 229 violates provision and delegation of
police power because it is oppressive, unreasonable,
arbitrary, confiscatory and therefore
unconstitutional.
b) It will make manufacturers and dealers of early
warning device (EWD) instant millionaires. Owners
of motor vehicles can provide practical substitutes
to the required EWD
Issue:
 WON LOI 229 and Memorandum Circular No. 2
exceed the proper exercise of state’s police power
Held:
No. Police power is the state’s authority to
enact legislation that may interfere with the
personal
liberty and property in order to promote general
welfare. It is the power to
prescribe regulations to promote the health,
morals, peace, education, good order or safety and
general welfare of the public.
The particular police power that was being
challenged was clearly intended to promote public
safety. The president presented the necessary
statistics to back his claim of the need to issue LOI
229.
It is also not true that LOI 229 as amended
forces owners of motor vehicles to purchase EWD.
In fact, with a little of industry and practical
ingenuity, motor vehicle owners can even
personally make or
produce this EWD as long as the same substantially
conforms with the specifications laid down in LOI
229.
*Finally, The declaration of Principles in the
Constitution provides: “The Philippines adopts the
generally accepted principles of international law as
part of the law of the land.” The 1968 Vienna
Convention on Road Signs and Signals is impressed
with such character. Since we ratified it, we have to
abide by its provisions.
5. Reyes v. Bagatsing
Facts:
Retired Justice JBL Reyes in behalf of the
members of the Anti-Bases Coalition sought a
permit to rally from Luneta Park until the front
gate of the US embassy which is less than two
blocks apart.
The permit has been denied by then
Manila Mayor Ramon Bagatsing. The mayor
claimed that there have been intelligence reports
that indicated that the rally would be infiltrated
by lawless elements. He also issued City
Ordinance No. 7295 to prohibit the staging of
rallies within the 500 feet radius of the US
embassy.
Bagatsing pointed out that it was his
intention to provide protection to the US embassy
from such lawless elements in pursuant to Art.
22 of the Vienna Convention on Diplomatic
Relations. And that under our constitution we
“adhere to generally accepted principles of
international law”.
ISSUE:
Whether a treaty may supersede provisions
of the Constitution.
Whether or not the rallyists should be
granted the permit.
HELD:
I. No. Indeed, the receiving state is tasked for the
protection of foreign diplomats from any lawless
element. And indeed, the Vienna Convention is a
restatement of the generally accepted principles of
international law. But the same cannot be invoked
as defense to the primacy of the
Philippine Constitution which upholds and
guarantees the rights to free speech and
peaceable assembly. At the same time, the City
Ordinance issued by respondent mayor cannot be
invoked if the application thereof would collide
with constitutionally guaranteed rights.
II. Yes. The denial of their rally does not pass the
clear and present danger test. The mere assertion
that subversives may infiltrate the ranks of the
demonstrators does not suffice.

In this case, no less than the police chief

assured that they have taken all the necessary steps
to ensure a peaceful rally.

Further, the ordinance cannot be applied yet

because there was no showing that indeed the
rallyists are within the 500 feet radius (besides,
there’s also the question of whether or not the
mayor can prohibit such rally – but, as noted by the
SC, that has not been raised an issue in this case).