CONSTITUTIONAL LAW I | ATTY.
GIL GARCIA II 1
DAY 01 – JUNE 14, 2018
Transcribed by: Ramos
ACADEMIC FREEDOM
General Discussion
What is academic freedom? Is that the right of the
students to go to any school he or she desires? Is it
the right of the students to insist that,“I should
graduate in this institution because I have the right to
academic freedom”? That is the wrong notion of
academic freedom. We can find this concept of
academic freedom in the last part of the syllabus but
we are going to discuss this as the first part so that
you would know what you are signing up for. It is in
Article 14, Section 5 of the Constitution, subparagraph
2 of that section:
“2. Academic freedom shall be enjoyed in all
institutions of higher learning.”
So, should we all enjoy this academic freedom? What
does this academic freedom mean? This right is given
to the institution of higher learning, not to the
student, under the Constitution—a school which is
considered an institution of higher learning. Not all
schools are considered an institutions of higher
learning. These institutions enjoy academic freedom
guaranteed by the Constitution; it is the right of the
school or college to decide and adopt its aims and
objectives,and to determine how these objectives can
be best attained free from outside coercion and
interference, except when there an overriding public
interest or welfare.
This right encompasses the following freedoms:
1. It has the right to determine who may teach;
2. It has the right to determine who may be
taught;
3. It has the right to determine how the lessons
shall be taught or what to teach; and
4. The freedom to determine who may be
admitted to study or who may be taught.
So, it is the institution which determines that, and it is
the right of the institution to do so under this
academic freedom concept/right.
DECS v. San Diego (1989)
Facts:
Now here, we have a student who was a graduate of
the UE, the course he graduated from is BS in zoology.
He wanted to be a doctor and he took the NMAT,
because apparently it is a prerequisite before you can
enroll in a medical school that you pass this NMAT.
Now there was a regulation during that time, an order
of Ministry of Education saying that you can only take
three times. If you failed the fourth time, then you can
no longer enter in medical schools. That’s what
happen to the person here, he took the NMAT and
failed as many times as he took it and so he wanted to
take it again for the fourth time. The court said that
he was not allowed because under this Ministry Order
he no longer take that after three successive failures.
So, he went to the RTC and sought relief. He wanted
to force this institution to allow him to take this exam
and the court granted his petition and prayer. Thus,
he was permitted to take the exam. And, the case
went to the SC.
Issue:
Is a person who failed NMAT three times, during this
time (currently, there might be a different
rule),entitled to take exam again?
Ruling:
No. The purpose why we have the NMAT is to
regulate the practice of medicine on all its branches
because this is a field where it is needed that experts
should be serving. In short, doctors should be
qualified to be doctors. And so, if we have regulations
that required those who wish to practice medicine
that they should take first this NMAT and succeed
that, that is considered as a valid regulation.
The purpose of the NMAT is to protect the public from
the potentially deadly effects of the incompetence
and ignorance of those who would undertake the
treatment our bodies and minds in diseases or
trauma. We have the NMAT so that we can screen
those who are not fit to be doctors and this regulation
limiting the number of times one can take it is
considered by the court as a valid form of regulation

since it falls within the ambit of police power. The
court emphasize that no one has the constitutional
right to a profession. (You cannot claim that, “I should
be a lawyer because I have academic freedom.”)This
is true of any other calling in which the public interest
is involved; and the closer the link, the longer the
bridge to one's ambition.A person cannot insist on
being a physician if he will be a menace to his
patients. If one who wants to be a lawyer may prove
better as a plumber,he should be so advised and
adviced. Of course, he may not be forced to be a
plumber but on the other hand he may not force his
entry to the BAR.
Another right that the person invoked here is his right
to quality education. The SC said that this right is
qualified, not absolute, because the same provision of
the Constitution also provides that "every citizen has
the right to choose a profession or course of study,
subject to fair, reasonable and equitable admission
and academic requirements.” This cannot be invoked
in this case because there was a valid and reasonable
requirement here which was the NMAT. One is not
entitled to quality education by mere invocation of
the right.
The person here even failed the NMAT five times.
While his persistence is noteworthy, to say the least,
it is certainly misplaced. The court is not saying that
he is stupid but that there may be a better profession
for him. He cannot insist on this profession if he is not
competent enough to be part of such.
Academic freedom is not the right of the students, at
least in our jurisdiction, but of the institution.
Morales v. Board of Regents (2004)
Facts:
Morales was a candidate for cum laude honors but
because of the different computation which has been
used by the school, she was not able to get that
honors. And so, he went to the Court to force the
school to vest the honor which, according to her, she
deserves.
Ruling:
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 2
The Court said that she cannot do so because
institutions of higher learning are given ample
discretion to formulate its own rules and guidelines in
the granting of honors which is part of its academic
freedom. This is part of the umbrella of the concept of
academic freedom. This freedom gives the institution
the right to decide for itself its aims and objectives
and how to best obtain them.
Now is this right absolute? Is this freedom of the
school absolute? Of course not. No right, as a general
rule, is absolute except the right to religion, if you
contain it in the realm of thought (which we would
discuss in Constitutional Law II). Likewise, institutions
cannot abuse right to academic freedom.
Courts may not interfere withthe exercise schools of
its discretion unless there is a clear showing that the
school or university has arbitrarily or capriciously
exercised its judgment.
Garcia v. Faculty of Admission (1975) – Landmark
Case
Facts:
Garcia, a female, wanted to study in the seminary. She
wanted to enroll in that school but there was a
handwritten letter given to her, informing her the
faculty’s decision to bar her from entering the school.
She argued that the grounds in the letter do not call
for expulsion, she did not do violate the school rules
and regulations,nor are they indicative or gross
misconduct. So she asked why she is being barred for
enrolling. In the reply, the school said that, among
other things, when she was still on her undergraduate
studies, they felt that her frequent questions and
difficulties were not always pertinent and had the
effect of slowing down the progress of the class. (So,
in short, she has an attitude problem also.) It would
be in her best interest to work with a faculty that is
compatible with her orientation.
Issue:
Can this school be compelled by way of mandamus (a
remedy to compel someone to perform a duty) to
allow her to enroll in this school?
Ruling:

No, because of academic freedom.
When you seek relief via petition for mandamus, you
have to prove that there is a clear duty (duty-
bound),with a legal basis, which is not being done by
the institution or the person. The court said here that
the school has no clear legal duty to admit her. Take
note that the Loyola School of Theology is a seminary
and so for the priesthood and she is not studying for
the priesthood because she is a layperson and a
woman. Even if she is qualified to study for
priesthood, the school still has the discretion to turn
down even qualified applicants due to limitations in
space, facilities, professors, optimum classroom size
and other component considerations.
admission to the school, to any school, does not lie or
rest on your sole and uncontrolled discretion.
Two aspects of academic freedom:
1. Academic freedom of an institution via
learning – the right to decide its aims and
objectives and how to best attain them.
2. Academic freedom of a faculty member – “the
right of a faculty member to pursue his
studies in his particular specialty
thereafter to make known or publish the
result of his endeavors without fear that
retribution would be visited on him in the
event that his conclusions are
distasteful or objectionable to the powers
that be, whether in the political, economic, or
academic establishments.”
Four essential freedoms under the academic freedom
of an institution via learning:
1. Who may teach
2. What may be taught
3. How it shall be taught
4. Who may be admitted to study
Therefore, pursuant to these, Garcia cannot force her
admission/entry to said institution.
DLSU vs CA (2007)
Facts:
Here, we have students who punched each other—
James Yap and three other student members of the
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 3
Domino Lux Fraternity. There wasscufflebetween
students of different fraternities and arrests were
made. The students who were found to have injured
James Yap were called by the school and subjected to
disciplinary action. Eventually, after due proceedings
they were expelled from the school. Among their
arguments when the case reached the SC was that
they should not be removedfrom the institution,
thatthey were denied of due process, and etc. On the
other hand, the school invoked its right to academic
freedom.
Issue:
Can the school here invoke its right to academic
Again, freedom to bar these students who have been found
to be administratively liable, disciplinarily-sanctioned?
Can they invoke this freedom so that the students
may not be will allowed to re-enter the school?
Ruling:
The Court said that, yes. The DLSU is an institution of
higher learning that possesses academic freedom
which includes of determination of who to admit or
study.
and
Civil Service v. Sojor (2008)
Facts:
Here we have a former president of Negros Oriental
found State University(NORSU) who was charged with
several cases before the CSC because he
hadcommitted many anomalies while he was still the
president. Now his defense was that, the CS has no
jurisdiction because it violates the right of the
University of its academic freedom. He insists that it is
the University that has the right to remove him
because of this academic freedom. The school itself
can determine who may teach. So according to him,
because of this, the CS has no jurisdiction over him
and that he cannot be removed by the CS. Instead, it
is the school that has the jurisdiction over him.
Issue:
Is the defense of the president correct?
Ruling:
The court said that, no.

His claim has nothing to do with academic freedom.
The principle of academic freedom finds no
application to the facts of this case. Here, the
complaints filed against him involved violations of CS
rules. As we said yesterday, the CSC is the HR
department of the government so if you work in a
private or public institution, this “HR department” is
tasked by the law, among others, the disciplinary rules
and regulations, and etc. The acts he had done while
he was the president violates the rules and
regulations of the CS rules—facing charges of
nepotism (appointing a relative within the fourth civil
degree), dishonesty, falsification of official
documents. These are grave offenses that do not call
for the application of the doctrine of academic
freedom. So in other words, the court said that his
arguments aretenuous. Plus, that is not his right but
that of the institution. It is the institution that can
invoke that right.
Calawag v. UP Visayas (2013)
Facts:
Here we have students of Masters of Science and
Fisheries,Biology, at UP Visayas. This degree requires
a thesis, so the students enrolled in a thesis program,
drafted a tentative thesis titles, and obtain the
consent of their thesis advisers as well as the other
faculty members to constitute a thesis committee.
Now when the proposals as well as the office titles
reach the office of the Dean, he rejected it, he
dissolved the thesis committee, and rejected the
thesis titles. The students here were displeased by
that action of the dean. They went to the court to
enjoin him from his acts.
Issue:
Can that be done?
Ruling:
No, because of academic freedom again.
Academic freedom of higher institutions via learning
gives them the right to decide for themselves the aims
and objectives and how best to attain them and these
institutions are given the exclusive discretion to
determine who can and cannot study in that as well as
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 4
who they can confer their honors and distinction on
being their graduates. The Court, as a general rule,
cannot interfere with the exercise of this discretion
unless there is a clear showing of arbitrary or
capricious exercise of judgment
General Discussion
Do students have academic freedom? In other
jurisdictions, there is a recognition of this
right.However, in our jurisdiction, we do not. We have
yet to encounter a case where student academic
freedom exists. But we have an article by Henry
Wrightman. According to him,in the universities in the
US there is this recognition of student freedom,
although not explicit. This student freedom is a
traditional accompaniment to faculty freedom as an
element of academic freedom in the larger sense.
So what does student academic freedom entail? It
does not only entail the free expression of rights of
students, generally, but also it also speaks of the
freedom of the students in the classroom. (Note that
this is not applicable in the Philippines.)This student
academic freedom requires the professor encourage
free discussion, inquiry and expression, and to
evaluate students solely in the academic basis.
Evaluation must not be capricious, whimsical, and not
on opinions or conducts in which is not related to
academic standards. Professor should be objective
and must not resort to subjective standards. (Of
course, the same should not be practiced in our
jurisdiction even though such concept of student
academic freedom is not embedded in our
jurisprudence in the spirit of fairness and
professionalism.) Also, not only rights within the
classroom, student academic freedom recognizes
rights outside the classroom. Students bring to the
campus a variety of interests previously acquired and
they may share this to the members of the academic
community. They are free to organize and join
associations to protect the common interest. They
should be able to participate in institutional
governance.

THE PHILIPPINE CONSTITUTION
Political law – the branch of public law which deals
with organization and operations of the governmental
organs of the state and defines the relations of the
state with its inhabitants in its territory.
Macariola v. Asuncion (1982)
Facts:
We have here a judge. There was a conflict presented
before the judge, a legal dispute, and apparently he
has an interest on that case because the party that
won was related to his wife. There was this verdict
and the losing party here complained that the judge
was biased because he violated among others Art. 14,
par. 1 and 5 of Code of Commerce which provides the
prohibition that “Justices and SC judges and officials
cannot engage in commerce,eitherin person or by
proxy, while he holds office.” In the case before the
judge, the winner is related to the wife and the
interest of that entity was owned by the wife so
indirectly now the judge has an interest—a
commercial interest. This was why he was charged in
the disciplinary committee of the SC during that time
for the violation of this provision.
Issue:
Is he liable?
Ruling:
No, because that provision in the Code of Commerce
partakes of the nature of a political law as it regulates
the relationship between the government and certain
public officers and employees, like justices and judges.
The type of political law invoked here by the
complainant is in the form of an administrative law
because it regulates the conduct of certain public
officers and employees. Our Code of Commerce was
taken from the Spanish Code of Commerce of 1885
with some modifications. Because of the change of
sovereignty, from the Spaniards to the US and then
from US to the Philippines, upon the transfer of that
sovereignty, Art. 14 of this Code of Commerce is
considered as political law was deemed abrogated
because there was such change of sovereignty. If
there is a change of sovereignty, political laws of a
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 5
former sovereign, whether compatible or not with
those to the new sovereign, are automatically
abrogated unless they are expressly reenacted by
affirmative actof the new sovereignty. There is an
automatic abrogation, non-applicability of political
laws, if there is a change of sovereignty—that’s what
so special about political laws, they change together
with the change of sovereignty—unlike municipal laws
which, as a rule,would not change.
“By well-settled public law, upon the cession of
territory by one nation to another, either following
a conquest or otherwise, ... those laws which are
political in their nature and pertain to the
prerogatives of the former government
immediately cease upon the transfer of
sovereignty.”
The difference between municipal law and political
law is that the former regulates other rights unlike the
latter that it regulates relationships of the
government and the people. Municipal laws of the
newly acquired territory which are not in conflict with
the laws of the new sovereignty will continue in force
even without the express assent or affirmative act of
the conqueror. On the other hand, for political laws to
be not abrogated, there has to be a positive act by the
new sovereignty.If there is none, then it is
automatically abrogated.
The judge won this case because the Art. 14 of Code
of Commerce is a political law and therefore it was no
longer binding when the transaction here occurred, it
has no longer legal binding effect and therefore
cannot apply to the judge in this case.
The provision here involved was abrogated after the
change of the sovereignty, from the US to the Phil. It
was not adopted by the new sovereign expressly so it
is deemed abrogated.
General Discussion
Divisions of political law:
1. Constitutional law – the study of the
maintenance of the proper balance between
authority and represented by a State and the
liberty guaranteed by the Bill of Rights.

 A branch of public law of a State which
deals with the organization and operation
of the governmental organs of the State,
the powers of Sovereignty, the
distribution of political and governmental
authorities and functions, the
fundamental principles which are to
regulate the relations of the government
and subjects and also prescribes the plan
and method according to which the public
affairs to the state are to be administered.
2. Administrative law – fixes the organizations,
determines the competence of administrative
authorities.
3. Law on municipal corporations
4. Law on public corporations
5. Law on public officers
6. Election laws
What is the Constitution?
It is the document which serves the fundamental law
of the State, basic law, the body of rules and maxims
in accordance with which the powers of the
sovereignty are habitually exercised. This instrument
is enacted not by an individual but by direct action of
the people by which the fundamental powers of the
government are established. It is the basic and
paramount law to which all other laws must conform
and to which all persons, including the highest officials
of the land, must defer. No act can be considered
valid, however noble it is,if it conflicts with the
Constitution because it must at all times remain
supreme. All must bow down to the mandate of this
law.
Types of constitutions:
1. According to its adaptation:
a. Written – is a constitution whereby its
provisions are reduced into writing and
embody in one instrument or set of
instruments in a particular kind which is
also known as the conventional or
enacted constitution because it has a
definite form
b. Unwritten – one that has not been
committed into writing and in any specific
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 6
type but is the accumulated product of
gradual political and legal development.
E.g., English Constitution
2. According to amendment:
a. Rigid – one that cannot be amended
except by way of a special process,
distinct from the passage of laws. It is
difficult to change and thereby acquires a
greater degree of stability
b. Flexible – can be changed in the same
manner to the same body that enacts
ordinary legislation. It is just like passing a
law.
Characteristic of our own constitution?
It is written and rigid. There is a form. It is definite. It
is rigid because it can only be amended or revised by a
procedure prescribed by the Constitution itself and
not by way of legislation.
What is the difference of a constitution and a law or a
common statue?
A constitution is a legislation direct from the people—
it is us through our representatives, constitutional
convention or the constitutional assembly. It is an
indirect action of the people through representation
by them. It states general principles, intended to not
merely meet existing conditions but must be able to
foresee the future so that it may not become obsolete
or inapplicable. Of course, it is the fundamental law of
the state.
A law is a legislation from our representatives, it
provides details in certain subject matters which it
treats and it is intended primarily to meet existing
conditions. It must always conform to the
Constitution.
Parts of the constitution:
1. Constitution of liberty (Bill of Rights)
2. Constitution of government – which
establishes the structure of government
3. Constitution of sovereignty – which provides
that the Constitution may be change
How do we interpret the constitution?
1. Verba legis – whenever possible the words
used by the constitution must be given

ordinary meaning except when technical
terms are employed
2. When there is ambiguity, Ratio Legis Est
Anima–a doubtful provision shall be examined
in the light of the history of the times and
conditions and circumstances under which
the Constitution must reign
3. The Constitution has to be interpreted as a
whole – You do not interpret it in isolated
parts. You have to read it as a whole.
Background of the present constitution:
We had the 1935 Constitution first, then the 1973
Constitution revising the former one and then we
have the 1986 Constitution (or the Freedom
Constitution) and finally the 1987 Constitution.
How was the 1987 Constitution crafted?
The way with which we can revise or amend it is also
in in the Constitution itself.In the 1987, through
Constitutional Convention or Constitutional Assembly.
Did the 1987 Constitution follow the procedure of the
1973 Constitution as to how it was created or
adopted?
It did not. It was by way of the provisions of the 1986
Provisional or Freedom Constitution of the Phil.,
Article 5, which provides:
ARTICLE V. ADOPTION OF A NEW CONSTITUTION
Section 1. Within sixty (60) days from date of this
Proclamation, a Commission shall be appointed by
the President to draft a New Constitution. The
Commission shall be composed of not less than
thirty (30) nor more than fifty (50) natural born
citizens of the Philippines, of recognized probity,
known for their independence, nationalism and
patriotism. They shall be chosen by the President
after consultation with various sectors of society.
Section 2. The Commission shall complete its work
within as short a period as may be consistent with
the need both to hasten the return of normal
constitutional government and to draft a
document truly reflective of the ideals and
aspirations of the Filipino people.
Section 3. The Commission shall conduct public
hearings to ensure that the people will have
adequate participation in the formulation of the
New Constitution.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 7
Section 4. The plenary sessions of the Commission
shall be public and fully recorded.
Section 5. The New Constitution shall be
presented by the Commission to the President who
shall fix the date for the holding of a plebiscite. It
shall become valid and effective upon ratification
by a majority of the votes cast in such plebiscite
which shall be held within a period of sixty (60)
days following its submission to the President.
Is this consistent with the 1973 constitution?
The 1973 Constitution required that before that
before the Constitution can be revised or amended, it
has to be by way of a Constitutional Assembly or
Constitutional Convention.
Why did we follow the 1986 Constitution instead of
the 1973 Constitution?
It is because in the meantime 1973 Constitution, there
was a supervening even that change the history of the
Philippines and that is the EDSA Revolution (People
Power).
Lawyer’s League v. Aquino
Facts:
Lawyer’s League questioned the propriety, the
validity, the legality of the Aquino administration
because according to them, that administration was
not created by way that is allowed by the present
existing Constitution back then which was the 1973
constitution.
Ruling:
The court said that they are wrong. The legitimacy of
the Aquino government is not a justiciable
matter,which means the Court cannot resolve this
matter because it is beyond its power to do so. It
belongs to the realm of politics where only the people
of the Phil. are the judge and the people have made
their judgment. They accepted the government of
Pres. Cory Aquino which is in effective control of the
entire country. The Court did not resolve this issue on
its merits. It dismissed the case because it is not a
justiciable issue.
De jure government – is one that has rightful title.
De facto government – is one that exercises power or
control but without rightful title. This de facto

government controls or usurps, by force or by voice of
the majority, a rightful legal government.
Is the Aquino government a De jure or a De facto
government?It is a de jure government, lawful and
legal.
Letter of Associate Justice of Renato Puno (1992)
Facts:
Puno before he became of Chief Justice, he was once
a Justice of the CA. He was appointed on 1980. There
was a time when he stopped his duties as a Justice
because he served as an Assistant SOLGEN and later
on he went back to the CA. After that, there was this
ranking as tothe seniority of the Justices. The ranking
is important for them because the more senior you
are, the more entitled you are to a higher position and
benefits. His ranking to the prior list was 11 but when
appointments were signed, his seniority in the ranking
lowered to 26. Thus, he contested this, according to
him he was senior and that he was already a Justice
before and etc. The other Justices, on the other hand,
contended that while that may be true,there was an
event happened between his appointment and this
appointment now, and that is the EDSA revolution.
Issue:
What is the effects of that revolution?
Ruling:
The EDSA revolution, in effect, created a new set of
courts. The present CA is a new entity which different
and distinct from the previous CA (Intermediate
Appellate Court, as it was known before), inthe wake
of the massive reorganization launched by the
revolutionary government of Aquino.
Revolution – the complete overthrow of the
established government in any country or state by
those who are previously subject to it or a sudden,
radical, or fundamental change in the governmental
political system usually effected with violence or at
least some acts of violence.
The effects of a revolution: abolishes, reforms, and
alters any existing form of government without regard
to the existing Constitution.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 8
Thus, when the EDSA revolution intervened, the 1973
constitution was, in effect, disregarded because this
act of revolution is, at the end of the day, the right of
the people to abolish, to reform, or to alter any
existing form of government. They can do that since
the Constitution is made by the direct action of the
people and so if the people want a revolution, they
want a new Constitution then that can be done
because they are the people. So, the existing legal
order then was changed because of the occurrence of
EDSA revolution. The legal order then was overthrown
by the Aquino government. In fact, her rise to the
presidency was not due to constitutional processes, it
was achieved in violation to the provisions of the 1973
constitution but then again it was sanctioned by the
direct action of the people. That is why when you go
to the provisions of the 1986 Freedom Constitution,
when you read the “whereas” clauses—“whereas the
new government was installed to a direct exercise of
the power of the Filipino people assisted by the NPA,
whereas the heroic action of the people was done in
defiance of the provisions of the 1973 constitution.”
The people here, they knew that what they are doing
were contrary to the legal order during that time but
still they revolted and a new government was created,
whereas the direct mandate of the people is
manifested by their extraordinary actions demands a
complete reorganization of the government,
restoration of the democracy, protection of basic
rights and etc. There is a need now to have a new
constitution and therefore this Provisional
Constitution is adopted and one of its provision, Art.
5, is the provision treating the creation the new
constitution by way of this Constitutional Commission.
So definitely the 1973 Constitution was not followed
in creation the 1987 Constitution. That is why those
who are loyalists of the Marcos’ regime, they insist
that the present constitution is not constitutional,
that the present constitution did not conform its
adoption to the method by which the constitution
could have been revised or amended. But we have
jurisprudence stating categorically that it was in the
de jure government and that it was installed by way of
a revolution.
How was the 1987 constitution come into effect?

Under Art. 18 of the Constitution, Sec. 27:
“This constitution shall take effect immediately
upon its ratification by the majority of the votes
casts in the plebiscite count for the purpose”.
So the moment that it was ratified by the people, it
has to be presented to us, and we get to ratify it in a
plebiscitewhether or not we approve of this
constitution because, again, it is the direct act of the
people.
DAY 02 – JUNE 18, 2018
Transcribed by: Sosoban
Last meeting, we finished Academic Freedom and we
started our discussion - we started last last week on
the concept of The Philippine Constitution but we
continued. We defined what Political Law is, we
defined what Constitution is. We left off with the
question as to when the 1987 Constitution was –
when did it take effect, that was the question.
ACADEMIC FREEDOM, CONTINUED
Before we [continue with The Philippine Constitution],
we have [this last] assigned case [under Academic
Freedom].
Cudia v. PMA (2015)
So here, if you followed the news, this was very
sensational. This cadet, the PMA has not allowed to
graduate because [he] committed administrative
infraction in school, among other things. Here, this
case details the acts that he committed, which the
Supreme Court held to be … we’ll know how the
verdict of the Supreme Court went.
In Cudia v. Superintendent of the PMA, this Cudia, just
like you are, he was a promising student of the PMA.
He was supposed to graduate class salutatorian and
even received the Philippine Navy Saber because he
was a top Navy cadet graduate. But, he did
something, which resulted to his...
Cudia vs PMA (2015) – Recitation
Sir: What happened on November 14, 2013 in this
case?
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 9
Answer: The combined classes of the Navy and Air
Force 1 CL cadets had a lesson examination on
Operations Research.
Sir: Where did he come from?
Answer: From a lesson examination on Operations
Research (OR432) at the PMAFI Room.
Sir: Who was the professor of that subject?
Answer: Dr. Maria Monica C. Costales
Sir: So, November 14, 2013, he was supposed to enter
this class, but what was the class before he entered
his 5th class?
Answer: Operations Research (OR432).
Sir: What was the class where he originated? And who
was the professor of that class? Why is it so important
for us to know the identity of this professor?
Student: Operations Research (OR432)
Sir: And who was the professor of that class?
Student: Dr. Maria Monica C. Costales
Sir: And what was the time?
Student: 1:30-3:00 P.M. (1330H-1500H)
Sir: So that was the period. And then, he went to the
next class, which is?
Student: English 412, sir. Which is, from 3:05-4:05
P.M. (1505H-1605H).
Sir: And in that class, what happened to Cudia?
Sudent: He was late for 2 minutes, sir.
Sir: He was late for two minutes. And so, there was
this issuance of this Delinquency Report against him.
So he was asked to explain, and what was his
explanation? What was his excuse?
Student: He said that he came directly from his OR432
class; however, they were dismissed a bit late by their
instructor.
Sir: Okay, so, that was his excuse. In other words, “it’s
not my fault – it was the fault of Dr. Costales. She

dismissed us late that was why I was late”. So that
was his excuse. And now, there was an investigation
here because this ballooned. There was a penalty
imposed on him but there was this investigation on
the matter. What was the statement of Dr. Costales?
Was it true, that she dismissed the class late?
Student: No, sir. Dr. Costales claimed that she never
dismisses her classes late and that the protocol was to
dismiss the class 10-15 minutes earlier than the
scheduled time.
Sir: And now, there is this contentious issue. Who is
now telling the truth? Is it the student or is it the
professor? This issue went to the Honor Committee
(HC) of the PMA. And what was the provision – what
was violated daw by Cudia? What did he violate?
Student: He violated the Honor Code, sir.
Sir: The Honor Code of the PMA. They have this code
of honor that they have to follow. And so, what was
the verdict of this Honor Committee? Before we go
there, what was the provision that was violated?
What was the act? What did he do?
Student: He lied, sir.
Sir: What is lying?
Student: He did not tell the truth on his first
explanation, sir.
Sir: Lying, under their Honor Code, is the giving of a
statement that perverts the truth. Here, he perverted
the truth daw in his written appeal. That time when
he explained the reason why he was late was that it
was the fault of his professor. When in fact, it was
found out that it’s even a contentious issue–wala pa
ta kabalo–it was even disowned by the professor. And
eventually, the Honor Committee laid down a verdict.
What was their verdict? Guilty or not guilty?
Student: Guilty, sir.
Sir: He was held guilty of violating the Honor Code.
And what was the recommended penalty? Which was
approved by the proper authority here. He was
______ from the academy.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 10
Student: Dismissed.
Sir: He was dismissed. That was the recommendation
– dismissal from the academy, which was approved by
this person here, Vice Admiral Abogado. And so,
dismissed siya from the academy. Of course, he did
not take that sitting down. He went to all avenues to
have that recommendation, as approved, reversed.
He has a sister—nagpa-tabang siyasa Facebook, it
became a viral matter; it became a sensation in the
media. He asked for help in the PAO. He even went to
the Office of the President to help him. What was his
argument? His argument was that, he could not be
expelled from the school because, among other
things, the school has a contract with him. And
number two, expulsion is too much of a penalty for
lying – for that two minute excuse, too much. So, now
we go to the issue, which is relevant to our topic on
Academic Freedom.
What was the argument of the PMA? Did it insist that
its recommendation was correct?
Sir/Answer: The position of the PMA was that, among
other things, we have this Academic Freedom, “we
can determine who can study in this institution; we
can determine who can graduate; and in fact, that
contract between us, there are correlative obligations
between the parties”. So therefore, tama tong
recommendation issued by the committee here, as
approved. It was consistent with the, among other
things, academic freedom.
Sir: Cudia insists that that freedom cannot be abused.
Was there, therefore, an abuse of that freedom in this
case? So now, we go to the issue. Who is correct? Is it
Cudia or the PMA?
Student: The PMA.
Sir: In other words, Cudia’s dismissal was upheld.
Now, take note of the discussion here of the Supreme
Court vis-à-vis of the contractual relationship between
the school and the student. So the pertinent
discussion here – what is the relationship between
the school and the student? Is it unilateral na ang
school lang mag sige impose? Or are there obligations

for both parties? The Court said here that this school
and the student is contractual in nature (meaning, naa
moy agreement) which you have to respect and
follow.
Now, once admitted, a student’s enrollment is not
only semestral in duration, but for the entire period
he or she is expected to complete it. And what is the
obligation of the school once you’re enrolled? This
institution of higher learning has an obligation to
afford its student a fair opportunity to complete the
course they seek to pursue. So, we are given a fair
opportunity to complete the course. Kung ma-violate
na siya, then unfair and there could now be a basis for
the reversal.
But here, was Cudia given a fair opportunity to
complete the course that he pursued? And the Court
emphasized that this relationship being contractual,
there are reciprocal obligations between the
parties(dili pwede isa lang). The school, on the one
hand, undertakes to provide students with the
education sufficient to enable them to higher
education or profession. The student, on the other
hand, agrees in that contract to abide by the academic
requirements of the school and abide by their rules
and regulations. So, there is now this correlative
obligation between those parties to observe: the
student should abide by its academic standard, rules,
and regulations; the school should give this student
the opportunity, give him the education that he
deserves, consistent with the policy of the school’s
rules and regulation. So, when you read that part,
mura jud kag maka, “hmm, I think the Supreme Court
is going to decide in Cudia’s favor”. But, later on, the
Court went on to discuss the concept of Academic
Freedom, which again nibalik na pud ang four
essential freedoms under that freedom:
(1) who may teach;
(2) what may be taught;
(3) how it shall be taught;
(4) who may be admitted or who may be taught.
So, that fourth freedom—the school can determine
who may be admitted to study, who can graduate
from this institution.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 11
Is the PMA an institution of higher learning?
Student: Yes.
Sir: Now, what is this Honor Code? What is it about?
Why is it so important for cadets to observe this
Honor Code? What does it contain?
Sir/Answer: The Honor Code is a set of basic and
fundamental, ethical, and moral principles. So there,
we have this code where all the—dapat ma-inculcate
nimo na fundamental principles as a cadet of the PMA
is contained. And in fact, this Code sets the minimum
standard for cadet behavior and is the guiding spirit
behind each cadet’s action. What is, now, the
character of this Code, insofar as the students? What
is their relationship between the Code and the
student/cadet? Is he or is she not bound by this Honor
Code?
Student: He is bound by the Honor Code, sir, because
he is part of the institution.
Sir: And when you are bound by the Code, what
should you do?
Student: To follow the Code.
Sir: To follow this Code, because this Code is so
important to the PMA, because they are going to be
the soldiers to defend us. The Code, here, ensures
that these students would have these fundamental
characteristics that would make them effective in
whatever endeavors they’re supposed to achieve as
cadets. They cannot be the seeds of rebellion or
treason. By virtue of being a cadet, the student
becomes a subject of this Honor Code and the system
of the PMA. Now, what was the provision in the
Honor Code that was violated by Cudia? What act did
he do? What is the first tenet of the Honor Code?
Student: The first tenet of Honor Code – Lying
pursuant to Section VII.12.b of the CCAFPR S-2008.
Sir: Number 1 sa ilang Honor Code – we do not lie.
Cadets, therefore, violate this provision by lying, if
they make an oral or written statement, which is
contrary to what is true. What else did he do here?
Now, Cudia said that he was late because of his

professor, and that the class was dismissed late by
this professor. Now, when he was asked to explain,
iya pa jud gi-qualify iyang statements, e.g., he was late
because of this, the word “class” means,and “we, 5
students”. He made qualifications on his statements
that was meant to what?
Student: Basically, he asserted those things so that he
would be excused.
Sir: What is the term on the Honor Code on that act?
Sir/Answer: He was quibbling.“A person can easily
create a false impression in the mind of his listener by
cleverly wording what he says, omitting relevant facts,
or telling a partial truth.”
Mao to iyang gi-himo with the intent to deceive or
mislead, he is quibbling. And this is a means of an
intentional deception—a form of lying. That’s what he
did. Qualified the statement, confusing everyone;
instead of directly and completely telling the cause of
his being late.
The reason he was late was that na-dismiss sila early
by their professor but they had conferred with their
professor for a certain matter and that is why they
were late for the second class. But it was false for him
to say that the professor dismissed them late because
it was their volition, their own action, that led them to
being late in their other class, not the fault of the
professor.
And that act is magnified by his qualifications so it
ballooned to something that became a disciplinary
action resulting to his dismissal from the school. Now,
in order to violate the Honor Code, you have to
commit the two elements that must be present:
1. the act itself; and
2. the intent to commit it.
In order to determine if there is a violation, you have
to answer the questions: Did you intend to deceive?
Did you intend to take undue advantage? If you
answer yes to either question then you did not do the
honorable thing. If you answered no then you did the
honorable thing. And that, here, even if this is a
factual matter which is beyond the province of the
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 12
Supreme Court, it went into the facts. The Court went
into the facts, read it, then determined that he was
indeed lying and quibbling. “Therefore, the Court said
that the recommendation of the Honor Committee
was correct and also the approved penalty. “
Now, another issue raised by Cudia here is that his
dismissal from the PMA was too severe and cruel, “for
two minutes late, [he] would be dismissed from the
school. [He] did not even fail [his] subjects; [He] was
top of the class, salutatorian.”
Anyway, the Court said that that is not too unusual
and cruel insofar as the Constitution is concerned. This
cruel and unusual punishment is a technical meaning
which we will discuss in the Bill of Rights. But
basically, it has something to do with the character of
the punishment; if it is unacceptable, for example,
beheading.
But, dismissal from the institution is not considered
cruel or unjust. And, in fact, it was found out that he
indeed lied and he also accepted the correlative
obligation imposed by the school on him to honor the
Honor Code and also the rules and regulations of this
institution when he enrolled. It was this contract, he
risked penalty when he entered the academy. So, his
dismissal from the school was maintained. Siguro no,
it was reflective maybe of what his true character
was.
THE PHILIPPINE CONSTITUTION, CONTINUED
We were discussing the Constitution, how it came
about, the violation of the 1973 Constitution,
following the provisions of the Provisional
Constitution by way of a Constitutional Commission.
Now, the question next is, when did the 1987
Constitution take effect? So to answer that question
we have the case of…
De Leon v. Esguerra (1987)
Facts:
Here, we have two conflicting parties fighting for the
same position. De Leon here was elected Barangay
Captain or Barangay Chairman, pursuant to B.P. 222.
He was elected on May 19, 1982 and he was supposed

to serve for six years and so, his term is going to end
on May 19, 1988.
Now, in the meantime, the OIC Governor, Benjamin
Esguerra, issued a memorandum on February 8,
1987—that was the date the memorandum was
signed—appointing another person to the position of
De Leon. Now, De Leon was challenging this,“Which is
which, ako or this person?” He challenged the validity
of that memorandum because according to him that is
not valid, there is no legal basis for that.
On the other hand, the governor insisted that the
basis for this memorandum is the provision in the
Provisional Constitution, Article 3,Section 2, which
allows appointments:
“Section 2. All elective and appointive officials and
employees under the 1973 Constitution shall
continue in office (dira sulok si De Leon ha,
because he was elected under the Constitution
during that time, it was 1973) until otherwise
provided by proclamation or Executive Order or
upon the designation or appointment and
qualification of their successors if that
appointment is made within the period of one
year from February 25, 1986”.
When was the appointment made here by the
Governor? February 8, 1987, so sulod siya within the
one year period from February 25, 1986. The
authority ends until February 25, 1987; the
memorandum was issued February 8, 1987. So, this is
now the basis of the Governor. Who is correct? Is De
Leon correct? “Should I cling to this position because I
was elected to this?” Or, should we sustain the
position of the OIC Governor because indeed,
consistent with the provision of the 1986 constitution,
nag-issue siya’g appointment within proper period.
De Leon v. Esguerra (1987) - Recitation
Sir: What is the issue here?
Student: WON the designation of respondents to
replace petitioner was validly made during the one
year period which ended in February 25, 1987.
Sir: So your issue is that whether or not that
designation of this other person to the position of De
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 13
Leon is validly made within the period pursuant to the
1986 Constitution. Was it validly made?
Student: No, sir.
Sir: Why? It was made within the period—until
February 25, 1987. Why was it not validly made?
Student: Because the 1987 constitution was ratified
on February 2.
Sir: So, what is the effect of that ratification?
Student: The power of governor Esguerra is no longer
in effect for the—
Sir: Now, there are two dates again na nag-pop up
aside from this February 25, 1987. February 2, 1987
and February 11, 1987. What happened in February 2,
1987?
Student: It was the ratification of the 1987
Constitution.
Sir: And what happened on February 11, 1987?
Student: The declaration of the…
Sir: Who declared that this was the verdict of the
people?
Sir/Answer: So, there was this proclamation on
February 11, 1987 by the President that this was the
verdict of the people.
 February 2, 1987 – ratification
 February 11, 1987 – declaration of the
President.
What happens if we reckon the effectivity of the
Constitution on February 2, 1987 to the position of De
Leon? What if we follow February 2, what will happen
to him?
Sir/Answer: He would stay in the position because?
What would happen to the 1986 Constitution?
Student: It was already abrogated.
Sir: The memorandum issued by the Governor here
was on February 8. If February 2, 1987 was the 1987
Constitution would be reckoned that as the effectivity
date. What would happen to the basis of the

memorandum of February 8, 1987 based on the
Provisional Constitution? Ma-walaan sya ug?
Student: It would have no basis.
Sir: Yes. The memorandum now would be anchored
on a non-existent constitution because the override
na siya by the February 2, 1987 ratification of the
1987 Constitution.
What would happen if we follow the February 11,
1987 to De Leon? He would what?
Student: He would desist proceeding.
Sir: Because by the time, February 11 atuang
reckoning period, the 1986 Constitution would still be
in effect therefore the memorandum of the Governor
would still have legal basis.
So the Court said here what was the date of the
effectivity of the 1987 constitution? February 2, 1987.
Why is it on February 2, 1987? What happened on
that date? The ratification. So what? So what of the
ratification? What did it do?
Sir: It is the act by which the people themselves, nag
yes sila, “we approve this Constitution”. That was the
point where we accepted, ratified the 1987
Constitution. Not on February 11 na nag-tally lang,
nag declare sa votes. It happened on February 2,
1987. That was the date where the plebiscite was
held, where we cast our votes to approve of this
Constitution and that was the date that it was ratified
and therefore, it was February 2, 1987 that the 1987
Constitution took effect.
And so, at the end of the day, was De Leon able to
maintain his Barangay Chairmanship? Yes.
From the barangay level, you think the issue, the facts
are very minimal but it went to the Supreme Court
and there is this discussion now of when the
Constitution took effect. And this was clarified in the
concurring opinion of Justice Teehankee; in the same
case that the 1987 Constitution took effect on
February 2, 1987, which was the date of its ratification
in the plebiscite held on that same date. The act of
ratification is the act of voting by the people. The
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 14
February 11, 1987 occurrence is merely the
mathematical confirmation of what was already
decided by the people in February 2, 1987. It merely
confirmed what the people approved already on
February 2, 1987. So that’s what happened in the
case.
Transition
Last meeting we differentiated the Constitution from
an ordinary law or a statute. Among other things, we
also distinguished their effectivity. We learned in that
case that the Constitution is effective upon its
ratification. What about laws? When do they take
effect?
We have the twin cases of Tanada v. Tuvera (1985 &
1986) principally dealing with that issue.
Tanada v. Tuvera (1985 & 1986)
Facts:
Now,we have several Presidential issuances with the
force and effects of law. They were enforced all
throughout the country. And now, we have people
here who want to have those laws declared null and
void for lack of publication. They are not published,
according to them, consistent with the requirement of
publication under the Civil Code particularly Article 2:
“Laws shall take effect after 15 days following the
completion of their publication in the Official
Gazette, unless it is otherwise provided”.
Now the contention of those against the laws is that
publication is always indispensable.
On the other hand, those who would want to have
these laws considered as valid is that if the law
already provides kung when siya maging effective
then there is no need for publication. If those
issuances are already saying that effective
immediately, then there is no need for publication
because that is what Article 2 of the Civil Code
provides. Laws shall take effect after 15 days unless it
is otherwise provided. There is no need now to
publish that because the law already says that it is
immediately effective.
Ruling:

The Court said that publication is indispensable. It is
necessary in those cases wherethe legislation itself
does not provide for the effectivity date (so kailangan
nimo i-publish so that we reckon the 15 day period
after 15 days maging effective ang law) But even if
that is the rule, Article 2 does not preclude the
requirement of publication in the Official Gazette
even if the law itself provides for the date of it
effectivity. In other words publication is always
required.
Why? Consistent with the requirement of due
process, we have to be notified of the laws that would
govern us. We have the legal maxims which is binding
on us all, “Ignorance of the law excuses no one from
compliance therewith”. But, that maxim will only
apply if in the first place we are notified of the law,
because if we are not notified of the law by way of
publication then how would you know that this law
exists. So, this is a fundamental requirement of due
process—publication is indispensable. It is
requirement of due process.
The Court however, be that as it may, applied the
Operative Fact Doctrine to discuss its subsequent
meetings in a nutshell. This Doctrine recognizes that
laws that have been considered as unconstitutional,
they are still—kadtung time na gi-consider na
effective sila, their effects are considered. It does not
mean that the law did not exist at all. Effects have to
be recognized. The Court applied that, but they
focused on the publication requirement. So the court
said that publication is indispensable. In the 1986
decision clarifying the 1985 decision, the Court said, in
some, that the law may provide for its immediate
effectivity but only until it has been published. In all
cases, publication is indispensable.
So what happens if we have a law which is silent as to
its effectivity? When does it take effect? 15 days after
publication. What if we have a law here that says
“effective immediately”, when does it take effect?
After publication. That is the correct interpretation of
that provision. You need to have that law published.
The moment that it is published, that law is already
effective. In no case can you not have that law
published, otherwise it would run contrary to Civil
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 15
Code, to this decision, to the requirements of due
process. Again, publication is at all times,
indispensable.
It is not correct to say that under theArticle 2 of the
Civil Code that publication may be dispensed with if
the law already says that it is effective immediately.
Do all laws have to be published? The court said here
that all statues including those of local application and
private law shall be published as a condition for their
effectivity but there are certain issuances that may
not be published: interpretative regulations and those
merely internal in nature may not be published
because they only regulate the personnel of an
administrative agency and not the public.
Now, what is the manner by which the publication
shall be done? Is it enough that you publish the title
or the caption of this law? The publication must be in
full otherwise it is not considered as publication. So
a that is why the Official Gazette or in the newspaper
makita nimo ang tibuok contents of the law. Now
where should the law be published? Is it always in the
Official Gazette? In this decision, the Courtsaid that it
may not even be made in the Official Gazette,
recognizing its limited readership. So the court
allowed the publication in newspapers of general
circulation and this was sanctioned by the issuance of
Executive Order 200, dating June 7, 1987, amending
the provision of the Civil Code. “Either in the Official
Gazette or in a newspaper of general circulation in the
Philippines.” So, that’s the difference between the
[date of effectivity] oftwo:
 Constitution – ratification
 Laws –complete publication
Now we go to this, we discussed in the first day of
class the concept of Constitutional Supremacy. No act
or law is considered above the Constitution. It must
always be consistent with the Constitution. Does that
mean that the mere invocation or claim that the law
or act is unconstitutional enough to make that law or
act unconstitutional? It is not, because we have here
the concept of Presumption of Constitutionality. All
acts of the government are presumed to be done
consistent with the Constitution. (Kung baliktad,

presumption of unconstitutionality, everything would
be chaotic. You would not follow the law anymore
because it is presumed unconstitutional. President or
Congress, you prove that this is constitutional. That’s
not the way things are.)
There is this presumption of constitutionality that was
discussed in the case of…
Case: Perez v. People (2008)
Here, we have Perez, a municipal treasurer
somewhere in Tubigon, Bohol. And, in the course of
his duties, he is supposed to be accountable for
money because that’s not his own money. Now, it was
found out by the COA audit that he incurred a
shortage in the amount of Php 72,784.57. And
because of that, COA notified him.Feeling or sensing
na ma file-an siya ug case, what did he do?
Perez v. People (2008) - Recitation
Sir: What did he do to the Php 72,000? Nagka-
shortage si treasurer. Nakita ni COA na naa siya’y
shortage, “This is the amount that you’re supposed to
produce based on the records, and this only the
amount that you were able to produce. Naa’y
balance, asa na man ni?” What did he do when there
was this Php 72,000 shortage?
Student: He verbally explained that part of the money
was used to pay for the loan.
Sir: He admitted na gi-gamit niya ang money for?
Student: For the loan of his brother.
Sir/Answer: For his own personal use.And, so sensing
na, “Uy, naa man diay koy shortage. Ma file-an ko
ani—I could be subject to a criminal action.”
What did he do to the amount?
Student: He used it for his—
Sir: No, no after it was already discovered and he
admitted it that he personally used it for personal
uses. What did he do?
Student: He restituted his shortage.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 16
Sir: What does that mean, restituted? In simple
words.
Sir/ Answer: Bayad. He paid. Gi-balik niya ang Php
72,000. Feeling na ma file-an siya ug case, he
restituted the amount. Still, it did not stop the COA
from rendering this report and filing it to the
appropriate agency or the filing of criminal charges.
And in fact, he was criminally charged before the
Sandiganbayan. The Sandiganbayan is an anti-graft
court. So, gi file-an siya and the Sandiganbayan found
him guilty of malveration and he was penalized with
what? What was the penalty?
Answer: 10 years and 1 day of Prision Mayor as the
minimum to 14 years and 8 months of Reclusion
Temporal as the maximum.
Sir: Was he imprisoned?
Sir/Answer: Anyway, imprisonment of 14 years for an
amount of Php 72,000. This is your tuition fee for one
year; and then, makulong ka for 14 years diba. Pag
gawas nimo imong anak teenager na. So, that was the
penalty imposed by the Sandiganbayan. Now, the
case went to the Supreme Court assailing that penalty
to be cruel and unusual, which is against the provision
of the Bill of Rights against cruel and unusual
punishments. Is the penalty unconstitutional?
We have a provision on the Constitution, Article 3,
against the imposition of cruel and unusual
punishments. Is the penalty here of imprisonment of
14 years cruel and unusual and therefore,
unconstitutional?
Answer: No.
Sir: When is a penalty cruel and unusual?
Student: If it involves torture or a lingering death.
Sir: Does the penalty of imprisonment involve torture
or a lingering death?
Student: No, sir.
Sir: And so? The penalty is? Is it cruel or unusual? Or
not?

Sir/Answer: It is not. It is not cruel or unusual and
therefore, it is not unconstitutional. Now, Mr. Perez
here, in assailing that decision is – where is the
penalty based anyway? What law? Where can we find
malversation, as a felony? Where can we find
felonies? Revised Penal Code. So, in effect, he is
saying that the penalties in that law are cruel and
unusual and therefore, the RPC is unconstitutional, at
least that provision.
The Court said that no. Again, we this presumption –
laws are presumed to be constitutional.There is a
strong presumption of constitutionality accorded to
statutes (included dira ang Revised Penal Code). If you
want to challenge the constitutionality—the
presumption of constitutionality of that law then, by
all means, you prove that; but in this case, it was not
proved. He who attacks the constitutionality of the
law has the burden of proof, has the burden to show
why such law is repugnant to the Constitution. So, it is
your burden because there is a presumption of
constitutionality.
THE PHILIPPINE CONSTITUTION: AMENDMENTS
AND REVISIONS
Let’s go to the next topic in your syllabus which is the
Amendment or Revision of the Constitution, under
Article XVII thereof. So, let’s just go to the provisions
first. Section 1 provides for the amendment or
revision of the Constitution and how it is to be
proposed at least in the manner in Section 1. It states:
“Any amendment (so pwede ka mag amend) to, or
revision of (so pwede pud ka mag revise), this
Constitution may be proposed by (so these are the
ways by which you can propose amendments to or
revisions of the Constitution):
(1) via Con-Ass (Constitutional Assembly) or the
Congress upon a vote of three-fourths of all its
Members (this is voting separately); or
(2) A constitutional convention (a Con-Con)”.
So, in Section 1 dira nato makita ang Con-Ass and Con-
Con, the means by which the amendments or
revisions to the Constitution may be proposed.
In Section 2, it also provides for a means by which the
Constitution may be altered but only limited to
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 17
amendments. Section 2 does not allow revisions
under this vehicle. Section 2 provides for
Amendments to the Constitution by way of an
initiative by the people; because as we learned
before, sovereignty resides in the people. We can
change the Constitution if we want to, under this
provision.
Amendments to this Constitution may likewise be
proposed by the people. How? Through an initiative.
How? Through a petition of at least 12 percent of the
total number of registered voters. So, dapat in this
petition, tama na siya with all the content, check na
siya, mao ni atong gusto ma-amend. And then, we
have this amendment approved by at least 12 percent
of the total number of registered voters in the
country. So, dapat at least 12 percent mu agree to the
proposed amendments. And not only that, within that
12 percent, it must be represented by at least 3
percent for every legislative district.
“Every legislative district must be represented by
at least 3 percent of the registered voters therein.”
So, 12 percent of the total voters in the country and
within that 12 percent, dapat each legislative district
dapat ma represent ang 3 percent of its registered
voters before that petition or legislative can be acted
upon and considered. So, that is the second way by
which the Constitution may be, at least in this section
– amendments to the Constitution may be proposed.
First one, provides for Con-Ass/Con-Con, and the
second provides for initiative by the people but only
limited to amendments.
Now, amendments to the Constitution under Section
2, kadtung initiative, have limitations; it cannot be
done within 5 years from the ratification of the 1987
Constitution. So, it’s no longer applicable to us
because 5 years has passed. But, we are limited to
amending the Constitution once every 5 years only.
It’s also provided in Section 2 under Article XVII.
Section 1. Any amendment to, or revision of, this
Constitution may be proposed by:
The Congress, upon a vote of three-fourths of all
its Members; or
A constitutional convention

Section 2. Amendments to this Constitution may
likewise be directly proposed by the people
through initiative upon a petition of at least
twelve per centum of the total number of
registered voters, of which every legislative district
must be represented by at least three per centum
of the registered voters therein. No amendment
under this section shall be authorized within five
years following the ratification of this Constitution
nor oftener than once every five years thereafter.
The Congress shall provide for the implementation
of the exercise of this right.
DAY 03 – JUNE 22, 2018
Transcribed by: Flauta
THE PHILIPPINE CONSTITUTION: AMENDMENTS
AND REVISIONS, CONTINUED
We’re still on amendments and revisions of the
Constitution, Article XVII.
Under Section 1 of this Article, the Constitution may
be amended or revised. Proposed amendments may
be made or revisions may be made via Constituent
Assembly (Con-Ass) or a Constitutional Convention
(Con-Con).
When we say Con-Ass, this is the Congress voting by ¾
of its members, and they are voting separately. You
will know that by their voting, are they exercising
legislative powers? Or are they exercising another
form of power?
In Section 2, amendments not revisions may be done
to the Constitution proposed by the initiative by the
people.
In Section 3, this provision deals with how the Con-
Con may be given effect. It would be by the forming of
the Constitutional Convention by a vote of 2/3 of the
members of Congress with all its members; or if they
can’t decide that, a majority vote of its members can
call for an election to submit the matter to the
electorate if they want a convention or not. So that is
how the Con-Con can be formed.
Section 4 provides for the manner or when are the
amendments or revisions effective. Any amendment
or revision of the Constitution under Section 1 which
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 18
pertains to Con-Ass or Con-Con shall be valid when
ratified by a majority of the votes cast in a plebiscite.
So there’s a specific plebiscite for that purpose and
the period there in the plebiscite shall not be held
earlier than 60 days or later than 90 days after the
approval of the amendments or revisions. So what is
the purpose of the period? So that the people will be
able to study the contents of the amendments or the
revisions. The people will be able to intelligently
decide whether or not they will agree to the
amendments or revisions.
Section 2 which is amendment via the petition for the
initiative by the people. Any amendment under
section 2 shall be valid when ratified by the majority
of the vote cast by plebiscite again. It should not be
held earlier than 60 days or later than 90 days after
the certification of the COMELEC of the sufficiency of
the petition. This is the difference between the first
paragraph. So here we can read that it is the
COMELEC that determines whether or not the
petition for the initiative is valid or not. The COMELEC
will then, after it certifies the validity of the petition,
siya na ang maglihok to give this plebiscite into effect.
So we learned under Section 1 of Article 17 that
amendments or revisions to the Constitution may be
made by Congress through the Con-Ass or through
Con-Con.
Difference between an amendment and revision
 Amendment –a piecemeal or isolated change
in the Constitution. It does not rewrite any
basic principle in the Constitution. There is
just a specific detail or provision which does
not alter the fundamental principles in the
Constitution.
 Revision – revamping or rewriting of the
entire Constitution, overhauling the entire
government.
Two stages of the amendment
1. Proposal – Con-Ass, Con-Con, or Petition for
Initiative
2. Ratification – this is when the people approve
the amendments or the revisions to the
Constitution. There has to be a vote to subject

the people to this exercise and determine
whether or not they approve the changes,
amendments, or revisions.
When we talk about initiative, the third way by which
amendments of the Constitution may be done, this
way is not self-executing. There has to be a law which
implements this provision in the Constitution. The
provision itself states that there has to be legislation
for this to be effective.
Limitations by which the people can amend or
propose amendments to the Constitution
1. The petition for initiative can only introduce
or propose amendments to the Constitution
not revisions;
2. Only once every five years; and
3. There must be an enabling law.
The case on that matter is Santiago v.COMELEC, which
we will discuss later.
Gonzales V. COMELEC (1967)
Facts:
Here we’re talking about an amendment. We’re
talking here about the 1935 Constitution. Thus, on
March 16, 1967, there were three resolutions issued
by the house. We have the following Resolution of
Both Houses (RBH):
 (RBH 1)introduces an amendment to the
Constitution by increasing the membership of
the House of Representatives;
 (RBH 2) calls for the calling of a Convention to
propose amendments to the
Constitution(maghimo daw ug Constitutional
Convention pursuant to this); and
 (RBH 3) proposes that a provision in the
Constitution should also be amended in order
to authorize senators and members of the
House of Representatives to become
delegates to the Constitutional Convention.
So we can now discern that RBH 1 and 3 talk about
amendments to the Constitution, whereas RBH 2 talks
about the formation of a Constitutional Convention.
These Resolutions became law via R.A. No. 4913.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 19
Now, several parties seek to have this law declared to
be unconstitutional and void for many reasons.
Among others things, “dili pwede na sabay that we
will like to introduce amendments and then at the
same time form a convention to propose
amendments and revisions to the Constitution.”
They alleged that Congress may only adopt either one
of the two alternatives to propose amendments to
the Constitution:
1. By calling a convention – However, you can’t
at the same time create and introduce in the
same law amendments to the Constitution
itself. You can only cause the amendment or
call a convention, but not at the same time.
2. Ratification of amendment via special election
(and not a general election).
Ruling:
So the Court here decided the matter, disagreed with
the positions challenging the validity of the law here
and dismissed it.
The Court said here that the alternatives available for
Congress are not exclusive with each other.
Admittedly, the word used in the constitution is “or”.
Proposed amendments using the disjunctive term
“or”. The court said that it is a weak argument
because according to it, that could be construed as
“and”. Moreover, the Court noted that subject matter
RBH no. 2 is different from that of no. 1 and no. 3. 1
and 3 again seek to propose amendments to the
Constitution while no. 2 proposes the creation of the
Constitutional Convention. Moreover, the
amendments proposed in 1 and 3 will be submitted
for ratification several years before the proposed
Constitutional Convention in RBH no. 2 but that
doesn’t mean that the resolution coming from these
three matters cannot be decided in one law. There is
nothing in the Constitution that negates the authority
of different Congresses to approve the contested
resolutions or the same Congress can pass the same in
different sessions.
May the Constitutional amendments be submitted for
ratification in general election? Should it always be
special? The Court said that in the 1935 Constitution,

there is nothing there that indicates that the election
should be special and not general. So in other words,
it can be done via a general election. Take note that
this talks about the 1935 Constitution in the 1987
Constitution. Basically, when we talk about ratifying
the amendments and revisions, there has to be a
plebiscite for that purpose.
Santiago V. COMELEC (1997)
Now, the 3rd way by which amendments can be
introduced in the Constitution is via a petition for
initiative by the people and the law that purportedly
provides for the manner by which these amendments
may be introduced to the Constitution is R.A. No.
6735. But the Court has held that—does this law
really provides for the way by which amendments to
the Constitution may be done? Is it complete in itself?
Does it really provide for the proper mechanism or
does it not?
Facts:
So here, we have a petition filed by Atty. Delfin before
the COMELEC. A petition to amend the Constitution.
And what is the tenor of the amendment? Lift the
term limits of elective official. So in other words our
representatives will be holding their offices in
perpetuity. And so, the petition started. He went to
the COMELEC with this petition and he wanted the
COMELEC to conduct a signature campaign in order to
gather the 12% and 3% required votes. (Remember,
before the petition or initiative can be valid it has to
be supported by the 12% of the total number of
registered voters in the country. And within that 12%,
every legislative district must be represented by 3% of
its registered voters.) Atty. Delfin wanted the
COMELEC to do the gathering of 12% and 3%.
The petition says, “Do you approve of lifting the term
limits of elective government officials?” He wanted to
submit this petition to the people and after it is signed
by the 12% and 3% it will be formally filed in the
COMELEC. So, COMELEC will gather and COMELEC
after gathering that will consider it formally filed.
Now, COMELEC was poised to do what Atty. Delfin
wanted it to do. And so, there are people who
questioned COMELEC in doing so:
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 20
1. Senator Defensor-Santiago – questioned that
the provision on the people’s initiative to
amend the Constitution can only be done via
legislation and she submits that there has yet
to be a law that can implement this provision.
Although, it has been recognized that there is
this R.A. 6713, she argues that this law failed
to provide any subtype. The law, in other
words, is deficient in the matter of the
petition for initiative on the Constitution.
2. Sen. Roco, on the other hand, challenged also
the COMELEC’s actions because according to
him, the petition itself is not the petition that
the COMELEC should act on. Dapat daw,
before the COMELEC can act on it, it should
already have the 12% and 3% vote. Here, Atty.
Delfin wanted the COMELEC to gather the
12% and 3% vote.
Issue:
Is R.A. No. 6713 adequate to provide for the system of
an initiative on the Constitution?
Ruling:
In deciding this case, the court said: 1) the provision in
the Constitution Section 2, Article 17 on this matter is
not self-executory. Yes, there has to be a law in order
to execute this provision and the limitation is that it
can only propose amendments on the Constitution
and not revise it. Has Congress provided for the
proper law for this? The court said that NO. While R.A.
No. 6735 intended—there is intent, because the word
Constitution appears in the law. It, however, does not
fully comply and does not fully give the proper
mechanism by which the petition for the initiative to
the Constitution may be validly done. The
Constitution pointed out several provisions in this law
that is not consistent with the Constitution itself. The
court noted the inclusion of the word Constitution in
the law was only a delayed afterthought. The law talks
about amendments and revisions but it included the
initiative of the Constitution. Not knowing that the
Constitution through a petition for initiative, all you
can do with it is to amend the Constitution and not
revise, but the provision says, “…to amend or revise

the Constitution via,” nakabutang didto etc. So the
Court said, that cannot be done.
Moreover, the law does not provide for the contents
of the petition for an initiative. No subtitle is provided
for the initiative of the Constitution in the same law.
There are also no details on the implementation of
the initiative on the Constitution. Take note that the
Court noted that the law provides for the mechanism
by which local legislation as well as national legislation
may be amended via initiative. But in the matter of
amending the Constitution via a petition for initiative,
the law is lacking. So the Court concluded that, this
law is incomplete, inadequate, or wanting in essential
terms and conditions insofar as the initiative on the
amendments in the Constitution is concerned.
So, since there is no valid law to effect this petition to
amend the Constitution, what the COMELEC did here
is that it does not have any basis and it does not have
any power under this law to do what it started to do
vis-à-vis the Atty. Delfin petition. Also, the court noted
that the Delfin petition does not contain the signature
of the required number of voters. Without the
required signatures, the petition cannot be deemed
validly initiated. The COMELEC acquires jurisdiction on
the power of this petition only after its filing.
When is it considered filed? If it already have the 12%
and 3% votes, and only then can COMELEC consider
that as initiatory pleading.
We already discussed how the amendments or
revisions can be ratified—through plebiscite.
Transition
Now let’s go into the cases that talk about the
Constitutional Convention.
What is this Constitutional Convention? Is it a
separate department of the government? So in the
syllabus, there is a topic there about the theories
regarding the position of a Constitutional Convention
in our system of government.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 21
Tolentino v. COMELEC (1971)
(Note: Sir kept on saying Gonzales v. Comelec, but the
case referred here is Tolentino v. Comelec)
Let’s talk about the theories discussed by the
Supreme Court.
What happened in this case? There was a
Constitutional Convention that was gathered in order
to propose amendments or revisions to the 1935
Constitution. Now, one of the changes sought to be
introduced by this convention was to amend Article 5
of the Constitution as to the voting age—to lower
voting age from 21 to 18. And so in order to effect
that, it was approved by the Convention and now they
want to hold a plebiscite to have that amendment
ratified by the people. And now, several parties
contested as to the action of the Convention. They
blame, among others, this piecemeal ratification of an
amendment to the Constitution cannot be done
because there is a limitation on the Article 15 of the
Constitution that you can only do this ratification in a
single election. In other words, all the amendments
and revisions must already be presented to the
people in that one plebiscite for ratification.
Piecemeal or one-by-one presentation is not allowed.
Before going to the many issues of the case, the Court
discussed the nature of the Constitutional
Convention.
What is the nature of this Constitutional Convention?
According to the court, within the domain of its
legitimate authority, this convention, as with all
departments of the government, is supreme.
Constitutional conventions, not called by the people
directly via a revolution, are completely without
restraint and are, as a rule, omnipotent and all-wise.
How was this convention formed? Was it formed via
revolution just like in the 1986 Provisional
Constitution? This Convention was created pursuant
to Article 15 of the 1935 Constitution which allowed
during that time to create a constitutional convention,
just like the 1987 Constitution.
So what are the powers of constitutional
conventions?

 General rule: Once convened, this convention
will become endowed with extraordinary
powers generally, as a rule, beyond the
control of any department of the existing
government
 Exception to the general rule:This
Constitutional Convention cannot be
unrestrained in all respects. It has limitations.
But the compass of the powers of this
convention can only be co-extensive with the
purpose for which it was called or created,
which is to propose amendments to the
Constitution. In other words, it is not immune
from attack on constitutional ground if it is
found out that what it creates or what it does
beyond the power or authority that is granted
under the Constitution. It should not exceed
in the authority given to it. In its internal
operation and the performance of its tasks, it
is not subject to any degree of restraint or
control but the convention or any of its
officers cannot violate the Constitution
because it’s created via the Constitution. It
cannot go beyond the Constitution and it
cannot violate the Bill of Rights, among other
things.
So again the powers of this convention are not
unlimited. They cannot be restrained. Who can
determine if the acts of this convention are
inconsistent with the Constitution? It is the Supreme
Court. His power to do so must be lodged on some
authority otherwise nothing can check this
convention.
And so continuing with this case, can proposals or the
amendments in the Constitution or the way by which
these proposals or amendments are done—can this
be subject to Judicial Review? Can Supreme Court
review this matter? Again, in the same case of
Tolentino v. COMELEC, remember the issue, this
Convention wanted to amend this provision in the
Constitution to lower the voting age under Article 5 of
the 1935 Constitution but it did not follow the
procedure under Article 15 of the 1935 Constitution
because it was a single election for a single
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 22
amendment. So it was questioned before the
Supreme Court. Now, one of the arguments here
against that challenge is that the Supreme Court does
not have the jurisdiction on that issue—it is a political
issue and non-justiciable matter. Is it justiciable?
When we say political issue, the court cannot resolve
that. It deals with the wisdom only the people in their
sovereign capacity can resolve the issue. That is why if
it’s political, the court do not touch that. On the other
hand, if we’re talking about a justiciable issue, we are
talking about legal issues, whether or not this Act is
illegal or inconsistent with the Constitution. And in
those matters, the courts have the power to decide.
On this matter, amending this provision in the
Constitution which is not consistent daw; the manner
by which the same is done is not consistent daw with
the 1935 Constitution. Is that a justiciable matter? The
Court said that it is.
Let’s talk about the manner or the nature by which
Congress,in introducing amendment or revisions in
the Constitution, how is it acting or in what capacity?
The power to amend the Constitution or to propose
amendments thereto is not included in the general
grant of legislative powers of Congress. In other
words, when the Congress, acting as a Constituent
Assembly introduces amendments or revisions to the
Constitution, they are not acting like they are passing
a law. It is part of the inherent powers of the people
through our representatives or the Congressmen—the
powers of the people as the repository of sovereignty
in the public and the State. So again, when Congress
acts as the Constituent Assembly, they are not acting
as legislators but as the people themselves exercising
their sovereign powers. Hence, when exercising the
same, the Senators and Members of the House act
not as members of Congress but as component
elements of the Constituent Assembly. When acting
as such, the members derive the authority from the
Constitution; unlike the people in performing the
same function, for their authority does not emanate
from the Constitution. The people themselves are the
very source of all powers in the government including
the Constitution itself.

And even so, when we propose it as constituent
assembly, amendments in the constitutions, the
members of the Congress derive their authority from
the fundamental law. It follows that they do not have
the final say on whether or not their acts are within or
beyond the ambit of the constitutional limitations.
Acting as a Constituent Assembly, this Con-Ass, is not
considered beyond the powers of the Supreme Court.
The Supreme Court can still check whether or not this
assembly is following the provisions of the
Constitution in the manner on which they are
proposing amendments or revisions to the
Constitution. And so, the Court said that is a
justiciable issue; the Court can resolve that whether
or not they are following the manner on which the
Constitution provides amendments or revisions in the
Constitution.
Gonzales v.COMELEC deals with RBH1, 2, and 3, but
that issue is still present in Tolentino v.COMELEC.
RBH1, 2, and 3 were questioned if constitutional ang
pag-amend sa Constitution at the same time calling
for a Constitutional Convention. Is that a justiciable
issue? The Court said yes, because the Supreme Court
can still check. In the Tolentino v. COMELEC case, this
is the case talking about the 18 year old—lowering
the voting age. Another argument as to that is
whether or not that can be done as done by the
Constitutional Convention here, if one plebiscite or
that one specific amendment, the court said that
again that is a justiciable issue. The same discussion,
the power to amend the Constitution is not included
in the general grant of legislative powers, but it is an
exercise of sovereign powers. Nevertheless, it does
not mean that this is beyond judicial review. Does the
court have jurisdiction over the case? Of course.
Now, Let us resolve the main issue in Tolentino
v.COMELEC. In Gonzales v. COMELEC, the Court
upheld the validity of the Law adopting the three
RBHs; so the petition was dismissed, valid ang law.
Now in Tolentino vs COMELEC, is the method by
which the amendment proposed here can be ratified,
is it consistent with the provisions of the 1935
Constitution? The Court said that it is not. Why? In the
1935 Constitution, the wording is that:
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 23
ARTICLE XV: AMENDMENTS
Section 1. The Congress in joint session
assembled, by a vote of three-fourths of all the
Members of the Senate and of the House of
Representatives voting separately, may propose
amendments to this Constitution or call a
convention for that purpose. Such amendments
shall be valid as part of this Constitution when
approved by a majority of the votes cast at an
election at which the amendments are submitted
to the people for their ratification.
Clearly, there is only a single election or plebiscite on
that matter. In other words, the Court did not allow
here the piecemeal ratification of each amendments
of the constitution. The Court explained the reason
why. First, what is the limit? The amendments must
be approved in a single election. Why should there
only be one election? What is the reason? So that the
amendment will not be ratified in a piecemeal
fraction. What does that mean? Any amendments in
the Constitution is as important as a whole of it, if
only because the Constitution has to be an integrated
and harmonious instrument. There is a discussion by
the Court here—to simplify it—in order for the voter
to intelligently decide whether or not he approves this
amendment, he has to be able to check what is the
effect of this amendment as to the entire instrument.
Dili pwede na this provision muna for today and then
tomorrow another provision, because how will he
know that this provision sought to be amended, what
it’s effect would be on the Constitution, and the
subsequent amendments on the Constitution as well.
It has to be viewed by the voter as whole.
The Constitution is worked by the drafters assembled
for that purpose.Once the original is approved, the
part of the people on its amendments is harder for
when the Constitution is submitted to them, they
have assumed its harmony as an integrated whole and
they can either accept it or reject it on its entirety. So,
as the Constitution is originally presented to the
people for ratification, it’s an entire instrument, and
when you want to amend that, it must also be
presented to the people in one instrument.
The Court said that this cannot happen in this case, in
the amendment in question. How can the voters in

the proposed plebiscite here, the lowering of the
voting age, intelligently determine effect the
reduction of the voting age upon the different
institution which the Convention may established in
the future and which presently is not given any idea.
Again, for the voters, for the people to validly cast a
vote they must have ample basis or an intelligent
appraisal of the nature of the amendment. How can
they do that? You need to have the instrument before
you as a whole with amendments already. The Court
said that the resolution adopted by the Constitutional
Convention here to effect that ratification of a single
amendment on the Constitution is null and void,
because it unconstitutional.
Javallana v. Executive Secretary (1972)
This is the case which practically validated the
effectivity of the 1973 Constitution. What did the
Supreme Court do here? Did it do anything?
Facts:
So here, on March 16, 1967, the congress passed a
resolution calling for a constitutional convention. Now
we have a Con-Con to propose amendments on the
Constitution and it began to perform its functions on
June 19, 1971. When the Convention was in session
on September 19, 1972, the President issued
Proclamation No. 1081, placing the entire Philippines
under martial law. On November 1972, the
Convention approvedof its supposed amendment on
the Constitution. So human na, na-studyhan na by the
Convention, “These are our proposed
amendments.”What is the next step after the
proposal? It has to be presented to the people for
ratification, so dapat i-force through siya in the
COMELEC by a plebiscite. Because probably, the
Executive Department here thought this Constitution
would not pass the plebiscite, the President issued
first PD No. 73, an order for the setting/appropriating
funds for the plebiscite for ratification or rejection of
the Constitution. Now this was challenged for many
issues. While the case was being heard, the President
issued Proclamation 1102. What does this
proclamation say? It declares that citizen assemblies
have already been formed, and the referendum was
conducted on these citizen assemblies, and that the
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 24
result shows that more 95% of the members of these
assemblies are in favor of the new Constitution.
Where did the President get this data? That is why it is
being challenged. Where did these citizen assemblies
come from? Is the formation of these assemblies
consistent with the way by which this Constitution
should be ratified? Was this made in the manner
allowed by the 1935 Constitution? And because of this
proclamation, the President himself certified and
proclaimed that the new Constitution has been
ratified by an overwhelming majority of all votes cast
by the members of the citizen assembliesthroughout
the Philippines. Of course, the parties seeking to have
this nullified, challenged that before the Supreme
Court. Javellana, among others, argued that the
president announced the immediate implementation
of the new Constitution through his cabinet, and not
to the people. And therefore, by doing so, he acted in
excess of jurisdiction in implementing the new
Constitution.
Now, there are many issues in this case.
The first issue is that—should this be recognized by
the Supreme Court? And in that issue (na mali si sir)—
ah let’s go back first to the first issue, as voted by the
Justices,
Issue:
Is the validity of P.D. 1102, declaration of the
president that the Constitution is already ratified by
the people, is it a justiciable or a political issue?
Ruling:
The Court said that this issue is a justiciable issue, and
therefore can be entertained by the Supreme Court.
Issue:
On the second issue, has the Constitution proposed by
the 1971 Con-Con been validly ratified by the people?
Ruling:
Now, 6 members of the Court here held that it was
not validly ratified in accordance with the provisions
of the 1935 Constitution because the provision here
talks about an election or plebiscite held in
accordance with law and to be voted on only by duly
qualified by registered voters. How was the

Constitution ratified here? Citizens’ assemblies. So, 6
of the justices here said that there was no
compliance.
Issue:
However, on the third issue, has the new constitution
acquiesced (nisugot ba ang mga tao sa pag-implement
ani)? Did the people accept the implementation of
this Constitution?
Ruling:
The Court said that no majority vote has been reached
by the Court. 4 members of the Supreme Court held
that people have already accepted the Constitution, 2
members said that there can be no free expression in
this case—in the supposed voting because they are
under martial law so whatever vote they casted it was
made under duress. 3 members of the Supreme Court
said that they do not have the knowledge or
competence to rule on the question. So, there was no
majority vote on this matter.
Issue:
Continuing the issue, are the petitioners challenging
P.D. No. 1106 entitled to relief?
Ruling:
This is the way the court decided it. 6 members voted
to dismiss this petition so, in other words, dapat at
the outset, even if the Court said that it is a justiciable
issue, na-dismiss na siya by the Supreme Court. Why?
Because 6 members voted that it should be dismissed.
Why? What is the reason of the 6 members? They
said that the effectivity of the Constitution, in the final
analysis, is the basic and ultimate question imposed in
these cases. Since the Constitution is already
effective, the issues presented in this case are already
moot.
Issue:
And finally, is the Constitution here enforced?
Ruling:
The Court, in its voting, held that there are not
enough votes to declare that the new Constitution is
not enforced. And so in other words, the 1973
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 25
constitution was enforced by the Supreme Court. So
sa sugod palang, sa pag-file palang sa petition, while
the Court said that it has jurisdiction and it’s a
justiciable issue, gi-dismiss ang petition. But why is
there a decision here? The decision was written by
Chief Justice Concepcion and he was a dissenter in
this case, so he explained this opinion. We’re talking
about the issue of jurisdiction, whether or not the way
by which Constitution may be amended or revise, is
that a subject to judicial review? The Court said that
yes that is inherently and essentially justiciable
matter. Again, why is it a justiciable matter? Because
all of the Supreme Court has to do is to check—these
are the proposed amendments and provisions, how
they are supposed to be ratified, and now gi-compare
niya if under the Constitution sought to be amended
or revised, are these consistent with the provision of
the Constitution. That is why the Supreme Court can
decide on the matter. It has the power to do so
because it interprets the constitution. And it can
declare whether or not acts pursuant to the
Constitution, consistent or inconsistent with it.
Now was the 1973 Constitution validly ratified?
According to Chief Justice Concepcion (he dissented in
this case; it is his decision; it’s just that the voting of
the Court still resulted in the effectivity of 1973
Constitution, but it did not prevent from saying his
opinion), the citizens’ assemblies, barrio assemblies,
were held to place the intervention of the COMELEC.
It was the Executive department that conducted these
elections. So under the 1935 Constitution, it is the
COMELEC who has the authority to conduct plebiscite
but it was not done in this case so clearly there was
already a violation in the 1935 Constitution vis-à-vis
the ratification of the 1973 Constitution. Because it is
the Executive department that conducted the
election, there is no way for checking the accuracy of
the returns in the elections.
Has the proposed constitution be approved been a
majority of the people in the citizens’ assembly? Chief
Justice Concepcion said that no. Inasmuch as under
the 1935 Constitution, the COMELEC has the power to
determine that. It was not done so because it was not
the COMELEC that conducted the election.

Had the people acquiesced to the proposed
Constitution and they accept this? According to Chief
Justice Concepcion, no, I am not prepared to concede
that the acts of the officers and offices of the
Executive department connote the recognition or
acquiescence of the 1973 Constitution because—
whether they recognized the proposed constitution or
not, is not something they cannot legally do, because
they are bound to obey and act in conformity with the
orders of the President. It was really the President
that railroaded the validity of this 1973 Constitution.
Did the Executive department agreed? They have no
choice but to agree they are under the Executive
department. What about the Legislative department?
The failure to meet of the members of the Congress
was not due to their recognition of the Constitution
but it was out of fear that those that would not
recognize the Constitution would invite the risk of the
application of the martial law to him. What about the
inaction of the people? Is that supposed to be
acquiescence? The CJ Conception said that, no.
Martial law connotes the power of the gun, meaning
coercion, compulsion, and intimidation of the military.
So the reason why the people are silent was because
they are afraid. So, even if he dissented, he could not
deviate from the result of the voting, because the
majority voted—there was not enough votes to
declare that the new Constitution is not enforced. By
virtue of the majority of the votes of the 6 justices
here against the 4 dissenting votes of the Chief Justice
and three other justices, the cases challenging the
validity of the 1973 constitution are hereby dismissed.
So, this being the vote of the majority, there is no
judicial obstacle for the Constitution to be considered
enforced and in effect.
THE PHILIPPINED CONSTITUTION: SELF-EXECUTING
AND NON-SELF-EXECUTING PROVISIONS
Now let’s go to the topic—how do you interpret the
provision of the constitution? Are they automatic self-
executing? Are they considered non-self-executing?
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 26
Manila Prince Hotel v. GSIS (1997) - Recitation
Here, the Court talked about the provision on the
Filipino First Policy. Is that a self-executing provision
or not?
Sir: Now here, GSIS, pursuant to its privatization
program, wanted to sell its shares of what hotel?
Answer: Manila Prince Hotel.
Sir: What happened after that? Who are the two
Bidders? How much was their bid?
 Manila Prince Hotel Corporation, a Filipino
corporation, which offered to buy 51% of the
MHC or 15,300,000 shares at P41.58 per
share
 Renong Berhad a Malaysian firm, with ITT-
Sheraton as its hotel operator, which bid for
the same number of shares at P44.00 per
share, or P2.42 more than the bid of
petitioner.
Sir: Whose bid should be selected?
Student/Answer: Renong Berhad, because it was
higher.
Sir: The GSIS owns a substantial share in this Manila
Prince Hotel, so they wanted to dispose of this shares,
and these two corporations/bidders wanted to buy
their shares. So in the first bidding, this Renong
Berhad, a Malaysian firm bid for a higher amount, so
definitely dapat siya ang madaog because the
Government would be able to get more money. This
Manila Prince Hotel Corporation wrote to GSIS that it
wanted to match the bid of Renong Berhad. So form
P41.58, gitaasan niya uto P44.00. Since it matched the
bid, it argued that it should be the winner.
Sir: What are the arguments of Manila Prince Hotel?
The GSIS was poised to reward these shares to the
foreign corporation. But here Manila Prince hotel
argued that it must be prioritized because?
Answer: It was argued by the Manila Prince Hotel, I
am a Filipino corporation and should be prioritized for
shares in Manila Hotel and according to it, this hotel
has become part of the national patrimony.

Sir: What provision did the petitioner invoked?
Answer: Petitioner invokes Sec. 10, 2nd par., Art. XII, of
the 1987 Constitution and submits that the Manila
Hotel has been identified with the Filipino nation and
has practically become a historical monument which
reflects the vibrancy of Philippine heritage and
culture. It is a proud legacy of an earlier generation of
Filipinos who believed in the nobility and sacredness
of independence and its power and capacity to
release the full potential of the Filipino people. To all
intents and purposes, it has become a part of the
national patrimony.
Petitioner also argues that since 51% of the shares of
the MHC carries with it the ownership of the business
of the hotel which is owned by respondent GSIS, a
government-owned and controlled corporation, the
hotel business of respondent GSIS being a part of the
tourism industry is unquestionably a part of the
national economy. Thus, any transaction involving
51% of the shares of stock of the MHC is clearly
covered by the term national economy, to which Sec.
10, second par., Art. XII, 1987 Constitution, applies.
In the grant under the Constitution, the grant of
rights, privileges, and concessions covering the
national economy and patrimony, the State shall give
preference to qualified Filipinos, in other words, it
should prioritize Manila Prince Hotel as the winning
bidder for this matter.
On the Hand, GSIS argued that, that provision is not
self-executing and requires implementing legislation
because this provision is under general principles of
the Constitution and therefore not self-executing.
So let’s discuss the principles discussed by the
Supreme Court here. We talked about the doctrine of
constitutional supremacy.
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
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 27
supreme law of the nation, it is deemed written in
every statute and contract.
Now in interpreting the provisions of the Constitution,
we have to reckon or distinguish between
declarations of policy whichare considered, as a rule,
not self-executing versus self-executing provisions. In
provisions which lays down general principles, such as
those found in Art. II, are usually not self-executing.
But, provisions which are complete and which also
supplies sufficient rules by means of which the rights
it grants may be enjoyed, they are considered self-
executing. Now if there is a confusion whether or not
this provision is self-executing or not, the Court would
prefer the provision be interpreted as self-executing.
That is if there is a confusion.
Issue:
Now, let’s go to the provision invoked here, Article
XIII, Section 10(2), the Filipino First Policy. Is that self-
executing or not self-executing?
Ruling:
It is self-executing. The Court said that:
“Quite apparently, Sec. 10, second par., of Art XII is
couched in such a way as not to make it appear that it
is non-self-executing but simply for purposes of style.
But, certainly, the legislature is not precluded from
enacting further laws to enforce the Constitutional
provision so long as the contemplated statute squares
with the Constitution. Minor details may be left to the
legislature without impairing the self-executing nature
of constitutional provisions.
“On the other hand, Sec. 10, second par., Art. XII of the
1987 Constitution is a mandatory, positive command
which is complete in itself and which needs no further
guidelines or implementing laws or rules for its
enforcement. From its very words the provision does
not require any legislation to put it in operation. It is
per se judicially enforceable. When our Constitution
mandates that [i]n the grant of rights, privileges, and
concessions covering national economy and
patrimony, the State shall give preference to qualified
Filipinos, it means just that - qualified Filipinos shall be
preferred.
“And when our Constitution declares that a right exists
in certain specified circumstances an action may be
maintained to enforce such right notwithstanding the
absence of any legislation on the subject;
consequently, if there is no statute especially enacted

to enforce such constitutional right, such right
enforces itself by its own inherent potency and
puissance, and from which all legislations must take
their bearings. Where there is a right, there is a
remedy. Ubi jus ibi remedium.”
Now if we have here a self-executing provision,
pwede ba na it can no longer be supplemented by an
implementing law? The Court said that even if it is
self-executing, it does not preclude laws which
supplements to facilitate the implementation. And so
the Court said here that the Filipino First Policy is s
self-implementing provision, it does not need a
legislation for it be effective.
As to the question whether or not this gives the State
a carte blanche authority to always give preference to
Filipinos, the Court here qualified that the phrase says
“qualified Filipinos”, not only Filipinos but they have
to be qualified in the first place.
So going back to the facts of the case, since the court
found out that the bidder here was a qualified Filipino
and applying the self-executing provision in this
Article, preference should be given to Manila Prince
Hotel.
DAY 04 – JUNE 25, 2018
Transcribed by: Casia
Last meeting, we finished our discussion on
amendments and revisions, and we started our
discussion on the interpretation of the Constitution,
particularly, on the matter on whether or not, in case
of doubt, in case of conflict, in the interpretation of a
provision, whether it is self-executing or non-self-
executing. How do you interpret this? The general
rule is that we interpret the provision as self-
executing. The Court explained the reason for such
interpretation in many cases. That is what we learned
in Manila Prince Hotel v. GSIS pertaining to the
Filipino First Policy where the Court said that that
provision, while it may be found in an Article in the
Constitution that will provide for policies, the Court
said that reading that provision already provides for
an enforceable right. It can by itself be a basis for a
legal right or claim. Therefore, it is self-executing.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 28
THE PHILIPPINE CONSTITUTION: THE SELF-
EXECUTING AND NON-SELF-EXECUTING
PROVISIONS, CONT’D
Domino v. COMELEC (1999)
The Court discussed here the plain meaning rule
(verba legis) and the meaning of the word “residence”
in Article VI. How do you interpret this word
“resident?” Where would you find this term? It’s in
Article VI, Section 6, on the requirements before a
person can be a member of the House of
Representatives. Before you can be a member of that
house, among others, you have to be a resident of the
district where you shall be elected for a period of not
less than one year immediately preceding the date of
the election. And so what is contested here is the
term “resident”. When are you considered as a
resident? How did this issue come about? Domino
filed a COC to represent the province in Saranggani in
the House of Representatives. He claims in his COC
that he has resided in that locality for 1 year and 2
months. When he won the election, his kalaban
challenged that victory by, among others, claiming
that he falsified his COC because, in fact, he was not a
resident of Saranggani. His presence there was merely
temporary. Wala jud siya’y intention to reside in that
locality. What were the documents that he
presented? Lease contractlang daw sya, etc. Of couse,
on the other hand, Domino argued that “I am a
resident of this locality.”
Is Domino here a resident of the province of
Saranggani for at least 1 year?
The court in this case said he is NOT. Now, this matter
which is important to our subject, to our topic, is the
interpretation of the word “residence.” According to
the Court, the term “residence” in its common
sentence or meaning is used in the law among others
as a requirement for qualification for elective office.
This term “residence” is synonymous or means the
same thing as “domicile” which requires therefore
that if you are going to interpret that word
“residence” with domicile it means that not only
should you intend to reside in this place. (Dili lang siya
kutob intention. Dapat naa pud kay act.) Also,

personal presence in that place coupled with conduct
indicative of your intention to stay in that place. How
can you change the domicile? Because according to
the kalaban of Domino, he resided in another locality
and then he just transferred to this Saranggani
because dili naman daw siya ma-elect didto sa iyang
laing lugar because probably he exceed the three-term
limit so nibalhin na daw siya for purposes of being
able to run again as a representative. The Court said
that before you can successfully effect the change of
domicile, you must demonstrate actual change of
domicile (dapat muhawa naka, alis ka na) from your
previous domicile, with the bona fide intention of
abandoning the former place of residence and
establishing a new one, and acts which correspond to
that purpose. What was the contract presented by
Domino proving that he changed his domicile? Lease
contract. “Nag lease nako diri.” But in this case—well
this is an old case, in subsequent cases, the court said
that you cannot use subjective grounds to determine
whether or not there is a spot for qualification.
Anyway, in this case, the Court said that that lease
contract purports impermanence, transiency, it does
not engender the kind of permanency required to
prove abandonment of one’s original domicile. But in
subsequent cases, lenient na ang supreme court.
Because if you require him to have a house in this
locality, you would be adding to the requirements of
the constitution (nag-add ka ug property requirement
which should not be allowed). But in this case the
Court said that interpreting the word domicile is
synonymous with residence, he was not able to prove
that he is now a resident of this locality. Therefore, he
is disqualified from representing the district in the
House of Representatives.
Residence – It is doctrinally settled that the term
residence, as used in the law prescribing the
qualifications for suffrage and for elective office,
means the same thing as domicile, which imports not
only an intention to reside in a fixed place but also
personal presence in that place, coupled with conduct
indicative of such intention.
Domicile – Domicile denotes a fixed permanent
residence to which, whenever absent for business,
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 29
pleasure, or some other reasons, one intends to
return. Domicile is a question of intention and
circumstances. In the consideration of circumstances,
three rules must be borne in mind, namely: (1) that a
man must have a residence or domicile somewhere;
(2) when once established it remains until a new one
is acquired; and (3) a man can have but one residence
or domicile at a time.
Provisions:
“Article 6, Section 6 - No person shall be a
Member of the House of Representatives unless he
is a natural-born citizen of the Philippines and, on
the day of the election, is at least twenty-five
years of age, able to read and write, and, except
the party-list representatives, a registered voter in
the district in which he shall be elected, and a
resident thereof for a period of not less than one
year immediately preceding the day of the
election.”
Pamatong v. COMELEC (2004)
Here, we have Ely Pamatong who is a candidate who
filed his COC to run for president but the COMELEC
declared him and 35 other people as nuisance
candidatesbecause among others, he could not wage
daw a nationwide campaign. And so Pamatong went
to the SC challenging the resolution of the COMELEC
because according to him under Article II, Section 26
of the Constitution, he has the right to run for public
office.
Was Pamatong’s right to equal access to opportunities
for public office was violated?
The Court said that he is WRONG. This provision is not
self-executing. You can find this provision under Article
II which enumerates declarations of principles and
state policies, and therefore these are guidelines, not
enforceable rights. The court emphasized here that
there is no such thing as a constitutional right to run
for or hold public office. You hold it because of public
trust; you may hold it as a privilege. Nothing in the
plain language of the provision invoked by Pamatong
here justifies an interpretation of the sort (na naa daw
siya’y right to run for public office).
Nature of Article II
This Article declares merely general principles which
are, as a rule, not self-executing. When you say that a

provision is not self-executing, there will be a need for
an implementing legislation before this can be a
source of enforceable rights. Since makita man nimo
ni si equal access clause in Section 26 of Article II, the
Court said that just like the rest of the policies
enumerated therein, this provision does not contain
any judicially enforceable constitutional right but a
mere guideline for legislative or executive action. That
is the purpose nganong naay mga enumeration diri of
policies and state principles. These are not supposed
to give you an enforceable right but these are
guidelines not only for the executive and legislature
for promulgation of laws, to guide them in their policy-
making but also for the judiciary, to guide it in its
decision-making. So, no enforceable right, Pamatong
cannot claim therefore that there is a violation
thereof.
Provisions:
Article II, Section 26, 1987 Constitution – “The
State shall guarantee equal access to
opportunities for public service and prohibit
political dynasties as may be defined by law.“
Tondo Medical v. CA (2007)
In 1999, the DOH launched this HSRA (Health Sector
Reform Agenda) which provides for five general areas
of reform. The first is to provide fiscal autonomy to
government hospitals. What do you mean by fiscal
autonomy? Autonomy insofar as the management of
your finances or concerns, pwede ka maka-impose ug
fees, etc., so that dili ka maging dependent sa subsidy
or support from the government. That is one of the
agenda of this HSRA, isa didto. Now, this was
challenged, this first agendum of this HSRA, it was
challenged by Tondo Medical here because what was
the reason? According to it, if you grant this entity
with fiscal autonomy, you will grant this public
government hospital the power to impose fees on its
clientele—when we’re talking about government
hospitals, we’re talking about indigents, mga people
who are not so financially well off. They go there
because pobre man siya—and if you impose this fiscal
autonomy, masingil na hinuon ni sila.
What was the argument of those who seek to uphold
this agenda? Their argument was that: “What is your
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 30
basis, Tondo Medical, in claiming that this agenda is
unconstitutional?” Nag enumerate siya: Article II
Sections 5, 9, 10, 11, 13, 18, among the other
provisions na iyahang gi-enumerate as having been
violated by this reform. Ang point daw aning mga
articles nagi-invoke ni Tondo Medical is that dapat
tagaan ug access ang poor and indigent to hospitals. If
you charge fees then you would limit their access to
medicine as well as to medical services. Tondo
Medical filed a case before the CA and the CA
disagreed with Tondo Medical because according to
the CA, this agenda cannot be considered to have
violated these provisions in the Constitution because
in the first place, they are not self-executing
provisions. Who is correct, the CA or this Tondo
Medical?
Whether the CA is correct?
The Court said that the CA is correct.
As a general rule, we follow that rule that a provision
is self-executing. The provisions of the Constitution is
considered self-executing as a rule and therefore do
not require future legislation. What is the reason?
Nganong dapat self-executing instead of non-self-
executing? If they are not treated as self-executing, if
that’s not the general rule, the mandate of the
Constitution can be easily nullified by the inaction of
Congress(wala man sila’y himuon, maong wala’y laws
ma-enact). So the Court said that in order to notlet
that happen, we interpret provisions as a general rule
to be self-executing para dili dependent ang effectivity
sa constitution and its provisions sa legislature.
Now, what is the legal value again of these principles
in Article II? They are not self-executing and therefore
they are only used by the executive and the legislative
in formulation of policy as well as the judiciary as aids
or guides in the exercise of its judicial review but they
cannot give rise to a cause of action in courts because
they do not embody judicially enforceable
constitutional rights.
Why is this the rule for general principles and policies?
Why can’t these policies be sources of enforceable
rights? The court said that to declare that these
provisions are enough to guarantee the full exercise of

the rights therein would be impractical if not
unrealistic because the provisions, the concepts
espoused within these provisions are very broad. “The
State shall promote social justice in all phases of
national development.” Social justice, how do you
interpret that? Is that your own interpretation? So
there has to be a valid or acceptable parameter. Dili
nimo pwede na you take this provision as is and use it
as a source of remedy because it is overly broad,
impractical, unrealistic. So, the HSRA is not
unconstitutional.
BCDA v. COA (2009)
In 1992, you have the passage of R.A. 7227, creating
this BCDA, Bases Conversion and Development
Authority. In this law, R.A. 7227, the Board of
Directors of this BCDA has the power to determine its
own organizational structure and in the course
thereof, adopt a compensation and benefit scheme
which is equivalent to the Bangko Sentral ng Pilipinas.
That’s a very generous compensation package scheme
if you follow that. Using that authority under the law,
nag-issue si BCDA ug issuance which granted this
year-end benefits to contractual employees as well as
regular employees and board members. That started
in 1996 but it was disallowed sometime in 2003 by the
Commission on Audit (COA) because it violated daw a
circular by the DBM. BCDA claims that the COA cannot
do this because, otherwise, it would violate several
provisions of the Constitution, particularly Article II,
Sections 5 and 18. What do these provide? “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
people of the blessings of democracy.” “The State
affirms labor as a primary social economic force. It
shall protect the rights of workers and promote their
welfare.”
If tanggalon daw nimo ang P10,000.00 na year-end
benefit, you would violate—there would no longer be
peace and order, protection of life, liberty, etc. Is the
BCDA correct?
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 31
The court said that NO. Article II, again, is not a source
of enforceable rights. Article II provides for the
declaration of principles and state policies. General
ideological principles are not a source of enforceable
rights. These principles are not self-executing.
Therefore, you cannot claim that you have any right
under these principles.
Provisions:
Article II, Section 5, of the 1987 Constitution– “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.”
Article II, Section 18, of the 1987 Constitution –
“The State affirms labor as a primary social
economic force. It shall protect the rights of
workers and promote their welfare.”
DatuMichaelAbasKida v. Senate (2011) – Recitation
Let’s continue with the concept in the case of Kida v.
Senate. The Court emphasized here the principle of
constitutional supremacy. You cannot deviate as, we
learned from the first meeting, the Constitution is
supreme over all.
Sir: What happened in Kida v. Senate?
Student/Answer: What happened in this case sir was
R.A. 9054 was passed that amended the ARMM
charter and reset the regular elections to the second
Monday of May 2013.
Sir: Let’s start with the history before we go to the
issue. After the effectivity of the 1987 constitution,
what was enacted 2 years on august 1, 1989?
Student/Answer: R.A. 6734
Sir: Which is?
Student/Answer: The organic act which establishes
ARMM and scheduled the first regular elections for
the regional officials.
Sir: Okay, so this law was passed which created this
ARMM, this autonomous region in Muslim Mindanao.
Then purportedly, there were laws that succeeded
this R.A. 6734 which daw amended it. What are these
laws?

Student/Answer: R.A. 9054 that reset the regular
elections for the ARMM regional officials to the
second Monday of September 2001; No. 9140-
on June 22, 2001. This law reset the first regular
elections originally scheduled under RA No. 9054,
to November 26, 2001; RA No. 9333that reset the
ARMM regional elections to the 2nd Monday of August
2005; and RA No. 10153 originated in the House of
Representatives as House Bill (HB) No. 4146, seeking
the postponement of the ARMM elections scheduled
on August 8, 2011.
Sir: So these laws daw, purportedly, allegedly,
amended R.A. 6734, this organic act. Now, why were
these laws challenged? What was the problem with
these laws?
Student/Answer: (wrong answer)
Sir: The issue on synchronization. But what about the
requirement under R.A. 9054 that before you can
amend the law, there is this requirement of blank and
blank? What does R.A. 9054 impose?
Student/Answer: Requirement for supermajority, sir.
Sir: Supermajority what?
Student/Answer: Supermajority requirement
amendment sir.
Sir: What does that mean? What does supermajority
mean?
Student/Answer: That would mean more than the
majority that is mandated by the Constitution, sir.
Sir: For? Majority of what, what body?
Student/Answer: For the House of Representatives,
sir.
Sir: House of Representatives lang?
Student/Answer: and the senate, sir. Congress
Sir: Congress. What law requires the supermajority
requirement? Katong mga laws na imong gipang
enumerate. One of them imposed this supermajority
requirement. What law is that?
Student/Answer: R.A. 9054 (9034?), sir.
Sir: Yes, this law imposed the supermajority
requirement. Before you can amend daw R.A. 9054 as
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 32
well as the organic act, Congress has to meet this
supermajority requirement. What is the supermajority
requirement? How many votes?
Student/Answer: 2/3, sir.
Sir: 2/3 votes of?
Student/Answer: Those votes of members of the
congress sir.
Sir: Voting…?
Student/Answer: Voting separately.
Sir: Yes, that is the requirement of the supermajority.
Before you can amend this law, 2/3 dapat imong ma
achieve na votes from both houses, voting separately.
What else? Supermajority requirement and another
requirement before you effect an amendment that is
the _____ requirement?
Student/Answer: Plebiscite, sir.
Sir: Yes, kailangan daw naay plebiscite. Kung gi-
subject ba ninyo ni sa mga inhabitants aning locality,
ma appove ba mo to effect and the amendment
thereof? So let’s go now to the ruling of the Supreme
Court. Now, insofar as the issue in synchronization is
for concerned, there is a discussion here by the Supreme
Court on the verba legis or plain meaning rule. Now,
what was the provision or Article which requires the
synchronization of the local elections?
Student/Answer: Article XVIII, Section 1, sir.
Sir: And what was the word that was zero-in by the
Supreme Court here to be at issue?
Student/Answer: (no answer)
Sir: There was an issue here that the election daw in
the ARMM should not be synchronized because it is
not in the Constitution, it is not _____ election
because what is held in the ARMM is the regional
election not a _____ election therefore there is no
need for synchronization. What is the word?
Student/Answer: Local election, sir.
Sir: Is regional inside or within the definition of local?
Student/Answer: Yes, sir.
Sir: The court here said that although called regional
elections, the ARMM elections should be included

among the elections to be synchronized because it is a
local election based on the wording and structure of
the Constitution.
A basic rule in constitutional construction is that the
words used should be understood in the sense that
they have in common use and given their ordinary
meaning, except when technical terms are employed,
in which case the significance thus attached to them
prevails.
Okay so that is how the Supreme Court interpreted
that—local includes regional. The reason why there is
this plain meaning rule is because the Constitution is
not a lawyer’s document, its language should be
understood (by all) in the sense that it may have in
common. Its words should be given their ordinary
meaning except where technical terms are employed.
Now let’s go to the supermajority requirement issue.
Why is this a constitutional issue? What provision in
the Constitution is this inconsistent with?
Student/Answer: Section 16(2), Article VI, sir.
Sir: Yes, now what does this Article provide?
Student/Answer: A majority of each House shall
constitute a quorum to do business.
Sir: so?
Student/Answer: So a supermajority is clearly in
excess of what the Constitution requires.
Sir: As a general rule, before Congress can pass,
repeal, amend laws, what is the required number or
voting?
Student/Answer: Majority, sir.
Sir: Majority vote lang ang required. So this is the
provision that clashes with the requirement of R.A.
9054 which requires a 2/3 votes plus it will be more
difficult daw for future Congresses to amend these
laws because we have to contend with this 2/3 voting
requirement. The Court said that that requirement
gives this law what kind of nature or characteristic?
Student/Answer:Irrepealably.
Sir: It becomes an irrepealable law which is repugnant
to this system of government. Why is that? Because
Congress is supposed to be plenary and the current
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 33
Congress cannot bind or limit the powers of future
congresses by enacting irrepealable laws. The Court
said that this supermajority requirement gives that
kind of law a resemblance of being an irrepealable law
(lisod na siya i-repeal).
Now, let’s go the plebiscite requirement. Is it required
in the supposed amendments here?
Student/Answer: No, sir.
Sir: Why?
Student/Answer: Article X, Section 18, paragraph 2
states that only amendments to, or revisions of, the
Organic Act constitutionally-essential to the creation
of autonomous regions i.e., those aspects specifically
mentioned in the Constitution which Congress must
provide for in the Organic Act require ratification
through a plebiscite.
Sir: The constitution only requires in Article X, Section
18, that you can impose a plebiscite requirement if
you have the following amendments: creation of
autonomous regions and for determining which
provinces, cities and geographic areas will be included
in the autonomous regions. Unsa pa? (a) the basic
structure of the regional government; (b) the regions
judicial system i.e., the special courts with personal,
family, and property law jurisdiction; and, (c) the
grant and extent of the legislative powers
constitutionally conceded to the regional government
under Section 20, Article X of the Constitution.
If your amendments touched this matter, then a
plebiscite is required which means that the
Constitution does not really proscribe or prohibit
totally plebiscites as long as mahulog ka diri, you fall
within the instances wherein a plebiscite may be
required. Now, are the supposed laws here, do they
fall under the instances that would require a
plebiscite?
Student/Answer: No, si.r
Sir: Thank you.
Now, in 2012, the Court resolved the Motion for
Reconsideration of this case where the Court denied it
with finality. The Court emphasized that

synchronization is mandated in the Constitution and it
includes the ARMM elections.
Also, the Court ruled that the laws challenged here
really do not amend R.A. 9054 or the organic act
because these laws do not change anything in the
import of the law but just set the definite schedule by
which the elections are to be held. Those changes,
according to the Court, are not considered
amendments. Nevertheless, the requirement in R.A.
9054, even if they are considered amendments, they
cannot be applied because the requirement of the
supermajority vote as well as the plebiscite are
inconsistent with the provisions of the Constitution.
They are unconstitutional. Therefore, they have no
force and effect. There is no need, therefore, for a
supermajority vote and a plebiscite before these
supposed amendments can take effect.
Chavez v. JBC (2013)
We have here the case involving the composition of
the JBC and the interpretation of the phrase “a
representative of Congress.”
When you say a plebiscite, an election,
representative, how many objects are you referring
to? Are you referring to 50 elections? You’re only
talking about ONE. “A representative.” That is under
the Constitution, Section 8, Article VIII, this provides
for the composition of the JBC. What is the JBC,
anyway? This is the body, the Judicial and Bar Council
which “sala” or sifts the applicants in the Judiciary as
well as in the Office of the Ombudsman, among other
government positions. So this is the strainer which
determines who are qualified. This JBC is composed of
how many members? Only 7 members as enumerated
in this Article. Who are these? The Chief Justice as ex
officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members.
When you say ex officio, they hold membership in the
JBC because they are the chief justice, secretary of
justice, and representative of Congress. There is no
need na i-appoint sila to that; holding those ex officio
positions is part of their duty. Those are the 3. Who
are the rest? A representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 34
Court, and a representative of the private sector. So 7
members in all.
In 1997, however, this composition was changed by
the JBC. Instead of having only 7 members, an 8th
member was added to the JBC because 2
representatives from Congress began sitting in the JBC
and they had ½ vote each. (So, nagka-yagaw na.) This
was challenged by Chavez, former Solicitor General
because according to him, this JBC was not following
the provision in the constitution insofar as its
composition is concerned.
They have 8 members when the Constitution only
allows 7, so who is correct here?
Now, what we need to discuss here is the unambiguity
of the provision. When you say unambiguous, it is not
confusing, it is clear. There is no need for other
interpretation and the phrase involved here is “a
representative of Congress.” Do you need to use a
calculator to compute how many representatives are
needed for Congress? The Court said that the JBC must
a be composed only of 7 members because of the word
used of the singular letter “a” preceding
“representative of Congress” is unequivocal, clear, and
needs no room for any Construction. When the
provisions are clear, there is no room, there is no need
for Construction. When the words of the statute or the
Constitution are clear and free from ambiguity or
confusion, they must be given their literal meaning,
free from any attempted interpretation. That’s what
the Court said here.
Also, there’s this maxim: “Noscitur a sociis” which
means that a meaning of a word is or may be known
from accompanying words. Under the doctrine, the
meaning of questionable words or phrases in a statute
may be ascertained by reference to the meaning of
words or phrases associated with it. What’s the point?
The point here is that do not read provisions of the law
or the Constitution in isolation. You read it as an entire
document. That’s how you interpret it. That’s the
concept of “Noscitur a sociis.”
Now, here, the Court applied the doctrine instead that
the word Congress as used in this provision is used in

its generic sense and what are the words na kauban
niya? “a representative of congress, chief justice,
secretary of justice, a representative of the integrated
bar, a professor of law,” aside sa fact that they note
singularity, there is also this use of the word Congress.
Congress was not emphasized here by the provision to
represent or to mean both houses because ang point
sa provision is that the 3 great departments of the
government are represented in the JBC: the Executive,
the Judiciary, and the Congress or the Legislature; one
representative each. So that’s “Noscitur a sociis.”
In the MR, the Courts have held their own decision and
emphasized that—there was an argument here raised
in the MR that there was just an oversight because
there was just a failure daw of the framers of the
Constitution to make the proper adjustment. When
there was a shift from unicameral/unilateralism to
bicameralism. Because of that oversight daw—sa una
unicameral but because they wanted it to be
bicameral, two houses of Congress—nalimtan daw,
congress ang gigamit. By oversight, congress gihapon
ang gigamit even if bicameral na ang character sa
legislature.
Is that argument correct?
The court said that NO. The Framers reposed their
wisdom and vision on one suprema lex to be the
ultimate expression of the principles and the
framework upon which government and society were
to operate. Therefore, when we interpret
constitutional provisions, the court relies on the basic
postulate that the framers meant what they said
when used the words in the Constitution. The
language used in the Constitution must be taken to
have been deliberately chosen for a deliberate
purpose. (Wala lang na gipatak-an diha.) Every word
there was selected with precision because they are
supposed to mean this way. Every word must be
interpreted to exude its deliberate intent which must
be maintained inviolate against disobedience and
defiance. So, the Court cannot accept that this was a
mere error of the framers. You have to prove that this
was an error.
Provisions:
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 35
Article 8, Section 8 – “(1) A Judicial and Bar
Council is hereby created under the supervision of
the Supreme Court composed of the Chief Justice
as ex officio Chairman, the Secretary of Justice,
and a representative of the Congress as ex
officio Members, a representative of the
Integrated Bar, a professor of law, a retired
Member of the Supreme Court, and a
representative of the private sector.
(2) The regular members of the Council shall be
appointed by the President for a term of four
years with the consent of the Commission on
Appointments. Of the Members first appointed,
the representative of the Integrated Bar shall
serve for four years, the professor of law for three
years, the retired Justice for two years, and the
representative of the private sector for one year.
(3) The Clerk of the Supreme Court shall be the
Secretary ex officio of the Council and shall keep a
record of its proceedings.
(4) The regular Members of the Council shall
receive such emoluments as may be determined
by the Supreme Court. The Supreme Court shall
provide in its annual budget the appropriations for
the Council.
(5) The Council shall have the principal function of
recommending appointees to the Judiciary. It may
exercise such other functions and duties as the
Supreme Court may assign to it.”
General Discussion
Okay. So we’re done with those concepts. In your
syllabus—that’s the syllabus of the bar exams—we
have to discuss the general principles in the
constitution, Article XVI. So let’s just discuss some of
them. Some of them we’ll just discuss in more detail
in the future.
Section 1 on the flag of the Philippines. Do not take
that for granted because we have a law that requires
us to sing with fervor whenever there is a flag
ceremony. Is it required na naay flag sa imong
atubangan before ka mutindog? No. We’ll discuss that
law sometime in the future. So in the cinema, you
accost or you reprimand those who do not stand up
because you are a law student. You’re supposed to be
superior over these pedestrian. I can arrest you—
citizen’s arrest.
 CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 36

The pertinent provisions, among others, is Section 3. GENERAL CONSIDERATIONS: CONDITIONS FOR THE
State immunity from suit. The State may not be sued EXERCISE OF JUDICIAL REVIEW
without its consent. There’s a discussion here, very
lengthy, in the future. Now, let’s go to some of the general considerations
before we continue with our study of the
Section 4 and 5 on the armed forces. The Armed
Constitution. The most important of which is the
Forces of the Philippines shall be composed of a
requirements or conditions for the exercise of judicial
citizen armed force which shall undergo military
review. You need to memorize and understand these
training and serve as may be provided by law. It shall
requirements if you want to pass this subject. (At
keep a regular force necessary for the security of the
least, kani man langma-carry ninyo to your grave.)
State. And, all members of the armed forces shall take
an oath or affirmation to uphold and defend this Funa v. Agra (2013) – Recitation
Constitution. Yes, because they are the first line of Here, there’s an issue of the holding of the multiple
defense against invaders, against China. So, we have offices of this Agra. Agra is so smart that he held the
to have a loyal compliment as emphasized in the case office of the Secretary of Justice and the Solicitor
of Cudia v. PMA. What about the police? Is it under General all at once, concurrently. But, under the
the armed forces of the Philippines? Learning from Constitution, particularly under Article VII, Section 13,
the Marcos regime where the police was under the cabinet members, among the other officials
AFP, now, under Section 6 of Article XVI: The State enumerated in that article, cannot hold any other
shall establish and maintain one police force, which position—members of the cabinet, etc.,[are
shall be national in scope and civilian in character. At prohibited] from holding any other office or
all times, civilian authority is supreme or superior to employment during their tenure unless otherwise
military employee. So civilian lang atong police. provided in the constitution. Now, Agra was
What else? Section 11 on ownership of mass media appointed as the acting Secretary of Justice. So he is
and the advertising industry. This is one of so many the SOJ and therefore, a cabinet member. But, he was
fake news because the mass media is owned fully by appointed also as acting SolGen so he is now holding 2
Filipinos. This provision provides that: The ownership offices in violation of this provision.
and management of mass media shall be limited to
Agra admitted that he held the 2 offices concurrently
citizens of the Philippines, or to corporations,
and so the case went to the Supreme Court. One of
cooperatives or associations, wholly-owned and
the many issues here which was discussed by the
managed by such citizens. 100% ang ownership sa
Supreme Court is what are the requirements before
corporation before you can engage in mass media
any court can entertain a case challenging an act or
outlet. Dapat! That is why—what happened to
law to be unconstitutional? We have the
Rappler? Was that foreign intervention violative of
requirements for judicial review of the
this provision? What about the advertising industry? It
constitutionality of a certain act or law. What is the
was impressed with merit which shall be regulated by
purpose? Nganong kailangan man ning mga
law. What is the required ownership? It should be
requirement? So that the Supreme Court will not be
owned by Filipino citizens or corporations or
swamped with so many cases left and right. Dapat
associations at least 70% of the capital of which is
naay parameters before the Court can rule or even
owned by such citizens or 70% ownership threshold
accept these cases challenging the constitutionality of
insofar as the advertising industry is concerned.
an act or law.

Sir: What are these 4 requisites?

Student/Answer: The 4 essential requisites for judicial

review are: (1) there must be an actual case or

controversy calling for the exercise of judicial power;
(2) locus standi;
Sir: What does that mean?
Student/Answer: The must have a personal and
substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its
enforcement.
Sir: Okay. The third?
Student/Answer: (3) the question of constitutionality
must be raised at the earliest opportunity; and (4) the
issue of constitutionality must be the very lis mota of
the case.
Sir: Yes. So, those are the 4 requisites. Remember
first, there must be an actual case or controversy
calling for the exercise of judicial power. The case is
not hypothetical. “Supreme Court, i-kuan lang gud
para naa mi guidance. I-lecture lang gud mi.” No,
there has to be—for the parties, there has to be rights
involved, etc. There has to be an actual case not
contrary to the concept—that case must not be moot
and academic, meaning “Human na ang issue. There’s
no need to resolve anything anymore.” There must be
an actual case or controversy.
Second, the person must have locus standi/legal
standing so that there is a point para naay ma victor
jud sa case. Kay kung wala’y locus standi, again,
what’s the point? Why would the Court even grant
you any relied when you’re not entitled to that relief.
It’s part of the requirement of the cause of action, to
have personality.
The third is that the constitutionality question thereof
must be raised at the earliest opportunity. Dapat dili
belated or mere afterthought. So dapat at the earliest
opportunity you raised it already.
Finally, the requirement of lis mota. Meaning, the
resolution of the constitutionality of this act or law
resolves the case. Dili siya in passing lang. Dapat ma-
resolve kung whether or not this act or law is
unconstitutional so that the case is fully resolved.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 37
Sir: So, this locus standi or legal standing requirement.
How is it interpreted by the Supreme Court? Is it
strictly or verily construed? Did the Court dismiss the
case outright pakita niya? “Ah walay standing,
dismissed.”Strict ba ang interpretation by the Court or
how is it interpreted?
Sir/Answer: Anyway, the Court here, to have legal
standing, you have to show, as the suitor/petitioner,
you will sustain a "direct injury." However, the Court
has time and again acted liberally on the concept of
this locus standi requirement. What is as a rule the
exception that is usually invoked, when the party has
no legal standing? What doctrine? That the case is of
what quality or importance? What do you mean the
act of exceeding, nag-kuan ka, nag—? You transcend.
What kind of importance? Transcendental
importance. The Court has treated this requirement
as technicality that can be brushed aside if the party
challenging this specific act or law can show that the
case is of transcendental importance. Meaning, far-
reaching in effect and the Court has discussed when
the case is of transcendental importance.
Anyway, going back to the issue of locus standi, the
court enumerated here the instances before you can
have standing.
1. For taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax
measure is unconstitutional;
2. For voters, there must be a showing of
obvious interest in the validity of the election
law in question.
Now, transcendental importance meaning the case
has far-reaching implications and there is a need now
to promulgate rules that will guide the bench, bar,
and the public in futureanalogous cases. So
sometimes gina set aside na [and locus standi].
Now, going back also to the issue on actual case or
controversy, the case must not be moot and
academic. When is a case moot and academic? It is
one that ceases to present a justiciable controversy by
virtue of supervening events, so that a declaration
thereon would be of no practical use or value.

This requirement, however, (na dili dapat moot and
academic) even if the case is already moot and
academic, the Court can still resolve that case if the
following requisites are present:
1. there was a grave violation of the
Constitution;
2. the case involved a situation of exceptional
character and was of paramount public
interest;
3. the constitutional issue raised required the
formulation of controlling principles to guide
the Bench, the Bar and the public; and
4. the case was capable of repetition, yet
evading review.
Every requirement, we have to discuss every
requirement has an exception, and there’s an
exception to the exception. Now, in ruling in this case,
the Court said that i-brush aside niya ang technicality
on legal standing as well as the fact that it is already
moot because ni-resign na si Agra and sa iyang
position as SolGen nag leave so there is no more
issue. The Court still resolved it. Ruling on the merits,
the Court said that Agra cannot validly hold any office
while he is the SolGen or if he is the Secretary of
Justice because he will be member of the cabinet and
is proscribed under the Constitution unless the
constitution itself allows it.
DAY 05 – JUNE 28, 2018
Transcribed by: Leonardo
Remember that we talked before about the flag. The
pertinent law here is R.A. 8491, and the prohibitions
here, then again take note of Sec. 38 of this law:
"When the National Anthem is played at a public
gathering, whether by a band or by singing or
both, or reproduced by any means, the attending
public shall sing the anthem. The singing must be
done with fervor.
As a sign of respect, all persons shall stand at
attention and face the Philippine flag, if there is
one displayed, and if there is none, they shall face
the band or the conductor."
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 38
So, still, if wala ang flag, you stand up at the first note
while the person shall execute by placing their right
palm on their left chests even if there’s no flag.
What is the penalty (Sec. 48 of R.A. 8491)? Failure or
refusal to observe the provisions of this Act, shall be
penalized by public censure. Any person who violates
can be imprisoned for not more than one (1) year, so
take note of that.
Last meeting,we continued our discussion on the
Philippine Constitution and we started our study on
theconditions for the exercise of judicial review. I’m
sure if you've read your cases, you are now familiar
with that requirements before the court may rule on
the constitutionality of an act or law, you know the
four (4), you reduce that to an acronym, e.g. ELLA:
"Earliest Opportunity; Legal Standing; Lis Mota; Actual
Case or Controversy". So be familiar with that.
GENERAL CONSIDERATIONS: CONDITIONS FOR THE
EXERCISE OF JUDICIAL REVIEW, CONT’D
Now we go back to the cases, we discussed Funa v.
Agra last meeting where we learned that the standing
requirement is sometimes brushed aside by the
Supreme Court as a technicality if the matter involved
in the case is of transcendental importance. But of
course, the Court here enumerated some instances
where the litigant has standing, if you're a taxpayer
and there's an illegal disbursement of public funds as
we'll learn that on the next case of Belgica v. Ochoa. If
you're a voter, you can file a case if your interest is in
the validity of the election; Legislators, if the act
complained of infringes their prerogatives as
legislators. The Court also discussed the application of
the moot and academic because as a rule, the Court
will only entertain cases that present actual
controversies and not hypothetical situations that will
only call for an academic discussion. But, that rule has
an exception as well and that is if the following
circumstances are present (exceptions to the moot
and academic doctrine):
1. There must be a grave violation of the
constitution;

2. The case involves a situation of exceptional
character and is of paramount public interest;
3. The constitutional issue raised requires the
formulation of controlling principles to guide
the bench, the bar, and the public;
4. The case is capable of repetition yet can
evade review.
Even if the case has been rendered moot and
academic, the Court may still recommend if all of the
aforementioned requirements are present. As the
Court said in the case of Funa v. Agra: Yes, Agra has
relinquished one of his prohibited positions but the
Court nonetheless decided to determine or to rule on
the matter.
Belgica v. Ochoa (2013)
This is the case that rendered as unconstitutional the
“Pork Barrel” otherwise previously known as the
Countrywide Development Fund. In the previous
cases, the Court has held that this Countrywise
Development Fund aka Pork Barrel is allowed or
constitutional but when Belgica v. Ochoa was
promulgated, the Court reversed its ruling in those
cases and now it is unconstitutional for many reasons;
we will discuss more on this matter on the Legislative
Department. For now, we'll be discussing the
requisites for Judicial Review because gi-explain siya
diri by the Supreme Court. Remember Pork Barrel,
this is alump-sum allocation given to a legislator. In
the provisions of the GAA of 2013 (General
Appropriations Act), gave the legislators a hand as to
how the money will be spent, and so this was
challenged because according to the challengers, once
the law passes after it goes through the legislature
and becomes a law and after it is signed by the
President, the Congress cannot anymore touch that
law except for limited instances when it calls for the
question hour to determine if the law has been
properly implemented but, as a rule, once it's already
a law, Congress cannot touch it anymore. After that
law becomes a law, all that happens to that law is
execution, and so once it leaves the legislature it is
then passed to the executive department—no more
na makialam pa si legislature ana because that's not
its job anymore. But, that is what the General
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 39
Appropriations Act of 2013 allowed because this was
the practice before. Si senator tagaan siya ug I believe
200M every year, Congressmen kay 70M every year,
and they have a free hand kung asa nila ihatag or
what agency that is why corruption is so rampant and
suddenly, the Supreme Court, when it validated this
practice was privy to that practice. That was why it
was questioned. Now the procedural issues discussed
by the Supreme Court in this case—again we
enumerate what are the requisites before the Court
can examine or rule upon the matter here which
involves the constitutionality of a law which is the
General Appropriations Act. Again, the four
requisites—ELLA.
Here, is there an actual case or controversy? When is
there an actual case or controversy? If it involves the
matter or controversies on which involves a conflict of
legal rights, an assertion of opposite legal claims
susceptible of judicial resolution as distinguished from
a hypothetical abstract difference of this view.
Now, take not also the requisite of "ripeness", which
is a requirement of the actual case or controversy
requisite. So the case must be ripe for
adjudication.When is it ripe of adjudication?
(Meaning, ready na na ma-rule upon siya.) It is when
the act being challenged has had a direct adverse
effect on the individual challenging it (so na
apektuhan siya).It is a prerequisite to something that
had then been accomplished or performed by either
branch, before a court may come to the picture and
the petitioner must allege the existence of an
immediate and effective injury to itself as a result of
the challenged action. And only then can you say that
the case is riped for adjudication and also you can say
that there is now an actual case or controversy.
Is there an actual case or controversy in this case?
The Court said YES, there is an actual case or
controversy because we are talking here of the
implementation of the GAA or General Appropriations
Act. Why is there an actual case? Because of the
antagonistic positions of the parties on the
constitutionality of the Pork Barrel system. And why is
the issue ripe here? Because the challenged funds and
the provisions allowing for their utilization are

currently existing and operational. Thus, there is an
immediate and effective injury to the petitioners
herein, taxpayers, as a result of the unconstitutional
use of these funds.
Is the case here moot and academic?
That's one of the grounds raised by those who seek to
maintain the validity of this practice. When is the case
moot? When there is no more actual controversy
between the parties or no useful purpose can be
served in passing upon the merits. If it’s just an
academic discussion, no one would really be harmed
or be benefitted by the decision. Is the case here
moot and academic because gi-reform daw sa
Congress ang ilahang scheme by which they would
spend the money? It will not terminate that
controversy because the reform is geared towards the
2014 budget and not the 2013 PDAF Article which
remains legally effective and existing. They cannot
touch anymore that 2013 law because it’s already a
law unless they would want to amend that. They are
saying,“We’re going to change this in 2014, but the
issue here enrolls the 2013 GAA, so therefore it’s not
yet moot.” What about the precedence of the
provision that can abolish the PDAF? The Court said
that it does not affect the PDAF because the executive
branch has no power to nullify or annul its legal
existence because this is a law, so the case is not
moot. At any rate Court said that all fourexceptions to
the mootness doctrine are present here.
What about the standing? Obviously, it exists because
the challengers here are, among others, citizens of the
Philippines (taxpayers) therefore they would be
affected by the illegal disbursement of funds.
So those are the procedural challenges in Belgica v.
Ochoa which was ruled upon by the Supreme Court as
unmeritorious ang ilahang mga grounds and
dismissed the case on those procedural grounds.
Manila Memorial v. DSWD (1997)
Now we have Manila Memorial challenging the
propriety of this 20% discount as a deduction. This RA
7432, granted senior citizens several privileges which
includes a 20% discount on several transactions (you
know that, you're senior citizen relatives are enjoying
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 40
that). Previously, the practice was that the 20%
discount is a direct deduction to the tax, but it was
changed and this 20% discount was now an
expendable deduction—is now a deduction on your
revenue, so it is no longer a deduction on the taxable
income but on the revenue. So this was challenged
proprietors of this establishment because their
claiming that naga-gamay ilahang deduction,
therefore, this is already an embargo or a taking of
private property which should be reimbursed by the
State under the exercise of its power of eminent
domain.
In this case the Court said that, the substantive issue,
this practice is not unconstitutional. It is valid because
this 20% deduction discount is not an exercise of
eminent domain but an exercise of police power.
What about the matter which is relevant to our
discussion?
Is there an actual case or controversy?
Remember the four exceptions? Here, pertaining tp
those who challenge the constitutionality of the law,
there’s an opposition that there’s no actual case or
controversy. The Court said that there is, if there’s a
conflict of legal rights and assertion of opposite legal
claims susceptible of judicial resolution, and that is
present here. In this case, the tax deduction scheme
has a direct adverse effect on the petitioner. Thus, it
cannot be denied that there exists an actual case or
controversy on the 20% discount now treated as a
deductible expense. The Court said that, again, this is
a legitimate exercise of police power.
What is the difference between an exercise of police
power and an exercise of eminent domain?
While both powers may involve the taking of private
property, the difference between them is when you
talk about Eminent Domain, it is where the private
property is taken for public use, while in Police Power,
it could be for the public welfare but not necessarily
for public use (not necessarily na i-distribute sa mga
tao but to protect and for the safety of everyone,
etc.). And, another difference between the two is
when you exercise Eminent Domain there must
always be just compensation, but when there's an
exercise of Police Power and there's taking of private

property, there need not be just compensation. But,
the State cannot, in the guise of taking private
property for public use, say that it is exercising police
power. Dapat ma-justify sa State why it is exercising
police power because this involves the taking of
private property. Sometimes the State would just say,
"We're not going to pay for this property because we
are exercising police power and there’s no need" but
the Court said that if the requisites of Eminent
Domain are present, you cannot say that this is an
exercise of Police Power because that can be done
easily by the State to the detriment of the private
individual. Take note of the distinction.
Here, the Court said that this 20% discount is a valid
exercise of Police Power and therefore there's no
need for the State to reimburse these proprietors.
Funa v. Manila Economic and Cultural Office (2015)
This involves the nature of the MECO. This MECO is
situated in—it is tasked to keep the relations of our
country with Taiwan. Now this MECO was, at first, not
audited by the COA, but later on this Funa, he sent the
the COA a letter requesting for a copy of the latest
financial report of this MECO. In other words he is
saying "COA, are you auditing MECO? If you are, give
me the audited financial report" and so, the COA
replied and said that the MECO was not among the
agencies audited by any of the three cluster—it was
not being audited by the COA. It had never audited
and examined the amounts of this MECO. And so,
because of this Funa went to the Supreme Court
challenging this act of the COA because according to
him it is neglecting its duty under the Constitution to
audit the accounts of a bona fide GOCC or a
government instrumentality. While the case was
pending, the COA claimed that it already issued the
office order 2011-298 where it conceded its
jurisdiction over the accounts of MECO and therefore,
realizing na murag tama siguro ni si Funa. It is now
auditing the MECO. So now, COA is saying na there's
no more need for the SC to resolve this case because
it has become moot and academic.
May a case be dismissed by the happening of a
supervening event?
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 41
Of course, even if the file na nimo na ang case dira,
unya karon naay supervening event, it becomes moot
then the Court may stop dealing with the matter
because to proceed further would only be academic.
Again, take note however for the exception of the
mootness doctrine even if moot and academic na siya,
take note of the four (must all be present in this case):
1. Grave violation of the Constitution;
2. The exceptional character of the situation and
the paramount public interest is involved;
3. When the constitutional issue raised requires
formulation of controlling principles to guide
the bench, the bar, and the public;
4. The case is capable of repetition yet evading
review.
Does the issuance of the office order here render the
case moot?
Yes, the Court said, it mooted the case. The case was
for mandamus, meaning you compel the COA to audit
or you compel this agency to do its legal duty. Yes, the
Court said it has become moot and academic but, it
still resolved the case to determine what the nature of
this MECO really is. Is this a government agency or is it
a private entity? Because the COA is only tasked to
audit GOCCs or government institutions. It cannot
audit private entities.
The Court enumerated the four exceptions to the
mootness doctrine: first, they are all contested—there
is a serious allegation here that the COA has been
released in its constitutional legal duty; second, there
is a paramount public interest in the issue here
because this involves failure of the COA to audit the
MECO; third, this is case is a novelty, insofar as
jurisprudence concerned; and fourth, it would result
in the issuance of the proper guidelines, principles for
the education of the bench, bar and the public.
What about the standing of Funa?
The Court said that he has standing, as a concerned
citizen, because this involves public funds used by this
MECO—it has to be audited by the COA. The Court
here, in relation to the substantive issue, declared the
MECO is a non-governmental entity but there are
moneys that are collected by MECO pertaining to

"verification fees" which it collects in behalf of the
Department of Labor and Employment, and insofar as
these verification fees are concernedand other public
funds that it would receive, they are subject to the
audit and jurisdiction of the COA. But, as to the rest of
these moneys, the MECO is not under the audit
jurisdiction of the COA.
Disini v. Secretary of Justice (2014)
This case questions the constitutionality of several
provisions of RA 10175 or the Cybercrime prevention
act of 2012. The discussion on the matter which is
pertinent to our topic is in the separate opinion of
Justice Sereno. What is so important about this
separate opinion? She discusses here this concept of a
pre-enforcement judicial review of this cybercrime
prevention act (before pa i-enforce ang law or act,
pwede na daw, according to her, ang judicial review).
Remember, the concept that there must be an actual
case or controversy—does this not negate the
requirement that the casemust be ripe for
adjudication and then there’s been an actual case,
when the Act here has yet to be enforced? She
discussed, among others, the concept of judicial
review that it is the power of the Court to determine
whether or not there's a justiciable issue or grave
abuse of discretion.
She started her discussion that, again, before the
Court may rule on the constitutionality of an act or
law before issues must be present and focus her
discussion on this actual case or controversy
requirement. So again, the acronym here is ELLA
(Earliest Opp; Leg Stan; Lis Mota; Actual case). She is
discussing here the fourth requirement which is that
there must be an existing case as a rule, there must be
a definite and complete issue concerning real parties
with conflicting legal rights. But what if, wala pa
nahitabo tong, wala pa na enforce, the law was not
yet enforced? Can there be judicial review? It is her
opinion that yes, it is possible. She cited the case of
Southern Hemisphere v. Anti-Terrorism Council,
where the Court conceded the possibility of a pre-
enforcement judicial review of a penal statute as long
as there is a real and credible threat of prosecution
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 42
involving the exercise of a constitutionally protected
conduct or activity.
So what are the requisites?
An anticipatory petition assailing the constitutionality
of the criminal law that is yet to be enforced (so wala
pa), may be, as an exception, given due force by the
SC when the succeeding circumstances are shown.
Requisites for exercise pre-enforcement judicial
review powers:
1. The challenged law or provision forbids a
constitutionally protected conduct or activity
that the petitioner seeks to do;
2. There must be a realistic, eminent and
credible threat or danger of sustaining a direct
injury or facing prosecution which awaits the
petitioner should the prohibited conduct or
activity may carried out;
3. The factual circumstances surrounding the
prohibited conduct or activity sought to be
carried out are real, not hypothetical and
speculative and are sufficiently alleged and
proven.
It is only when the foregoing minimum conditions are
present that there could be a finding of a justiciable
case or controversy worthy of this Court's attention
and the exercise of its pre-enforcement judicial
review.
(Substantial issues are discussed more in
Constitutional Law II because they deal with
constitutionally protected rights.)
The Court here did not invalidate or render as
unconstitutional the cyber libel provisions. The
provisions are valid and constitutional except when
the post is original or you are the one who created it,
that can be subject to cyber libel but if you only liked
the post, you only had a "knee-jerked" reaction, the
Court said that is not punishable. If you are the
original author then you can be subject to libel. If you
only comment or react, the Court said that you cannot
be penalized. What if your comment is also libelous?
Of course, that will considered as an original content
which may subject you to cyber libel. Also, the Court
held here as unconstitutional the provision of spam—

gina-bawal under this law ang pag distribute ug spam
sa mail but Court said that cannot be done because
this is the prohibition of valid constitutional right.
Unsolicited commercial communications, although are
of a lesser form of communication therefore its
protection is limited, the Court said nonetheless it is
protected speech so you cannot prohibit that.
Unsolicited advertisement such as spam are
legitimate forms of expression and if the State cannot
present the valid reason to prohibit that, then that
act, as an exercise of constitutional right, cannot be
proscribed.
Imbong v. Ochoa (2014)
The challenge of the constitutionality of the RH Law.
There's a discussion here of the four requisites.
Is there an actual case or controversy in this case?
The Court said that yes, the case is ripe of
adjudication as well. Also, bolstering the discussion of
the Court in Disini v SOJ, there was a question here,
does the fact that the law or act in question is not yet
effective, does it negate the requisite of ripeness?
Here the Court in the ponencia (the majority opinion)
said that it does not. Even if the law or act in question
is not yet effective, it does not negate the requisite of
ripeness.
Citing precedents, the Court ruled that the fact of the
law or act in question being not yet effective does not
negate ripeness. Concrete acts under a law are not
necessary to render the controversy ripe. Even a
singular violation of the Constitution and/or the law is
enough to awaken judicial duty.
Again, take note of the discussion of Justice Sereno in
the Disini case for a more extensive opinion the
matter.
Is there an actual case or controversy here?
The Court said YES. The enforcement of the RH bill, it
prohibits some form of conduct.
Is this case of the constitutionality of this law ripe for
adjudication?
Court said YES. Why? In this case the RH Law and its
IRR have already taken effect, and there are penal
sanctions under this law. So, there are now issues that
can be resolved. Medical practitioners or medical
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 43
providers are in danger of being criminally prosecuted
under this law.
Locus standi?
The Court said, the petitioners in this case have a legal
standing. Even if they do not, the case is of
transcendental importance.
Again, the substance of this case is more discussed on
Constitutional Law II (like the Disini case). It involves
freedom of religion. There is a requirement in the RH
Law that if you are not willing to render medical
services to this person (for example abortion), you
must refer this person to another health institution
that would provide that service. What if that is
contrary to one’s religious beliefs? The Court said that
the law cannot force these people to decide to violate
their religion only to comply with the provisions of the
law. So, they may not refer therefore the patients as a
general rule if it violates their religion. The exception
only if the case involves an emergency, e.g., what if
hapit na mamatay na ang child or person, in that
situation it cannot be an exemption to the rule. So the
Court invalidated that provision because it violates
freedom of religion.
Corpuz v. People (2014)
Here, we have an estafador, totalling 98 thousand.
Corpuz, the accused here, loiters in casinos and then
looks at the people na lugi na or kapildihon and then
he would offer to buy their jewelry—so tig sanla siya
or mobile pawnshop. So, some of these losers they
went to this person, sanla ilang jewelry but he was not
able to pay them. Here, the amount involves 98
thousand pesos. He was supposed to be the
middleman, he would sell the jewelry, he would
return the proceeds to the nag sanla but was not able
to do that so then he was accused and charged to the
felony of estafa. He was convicted by the RTC of
imprisonment up to 14 years and there is a discussion
here on the incremental penalty rule because the
amount—there is this provision in the RPC that if the
amount exceeds 22 thousand pesos, there is this
incremental penalty. One (1) year from each
additional 10 thousand pesos. But the total of the
penalty which shall be imposed shall not exceed 20

years, so applying that incremental penalty rule,
naabot ug 14 years ang iyahang imprisonment. So,
now he challenges that verdict against him, the guilty
ruling and the penalty imposed for being too harsh.
While there is no discussion really on the four
requisites, but the Court dismissed that argument
because according to the Court, your remedy is not
with us but your remedy is to go to Congress because
if you want this law amended then you go to
Congress, and indeed the law has been amended. I’m
sure you’re already aware of the increased amounts in
the amended RPC.
The Court cannot uphold his contention, nabawasan
ang iyahang penalty because the Court would now be
engaging in judicial legislation. There is this law, this is
the penalty, this is what he committed and applying
the felony to the requisite provision which is the
amount of the penalty the Court cannot change that
because it would be violating the law if you could
change that which is judicial legislation which the
court cannot do. Your remedy now is to go to
Congress.
Araullo v. Aquino (2014)
Deals with the constitutionality of the disbursement
acceleration program—the DAP. What is this DAP?
Some of the moneys already appropriated or already
allotted, gipang re-align by the president. Included
diri, as alleged, the 50 million reward to the senators
who voted for the ouster of former Chief Justice
Corona using funds in the executive department. The
challenge against this practice was that, this DAP
contravened the provision of the Constitution that no
money shall be paid out of the treasury except in
pursuance of an appropriation made by law. Before
you can spend the money, you have to have this GAA.
And this GAA already designates kung asa ma-adto
ang money. However, that money can be saved but
there are requisites before you can spend those
savings. The executive department did not do that
here. Wala nagasto ang money—they used it to pay
some other project just like the payment of the
senators here. It was challenged na that could not be
considered as savings because it was not even spent
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 44
for the purpose. When you talk about savings, i-spend
nimo siya then you get the net amount, that is what
you use for re-alignment.
At the core of the controversy is Section 29(1) of
Article VI of the 1987 Constitution, a provision of the
fundamental law that firmly ordains that "[n]o money
shall be paid out of the Treasury except in pursuance
of an appropriation made by law." The tenor and
context of the challenges posed by the petitioners
against the DAP indicate that the DAP contravened
this provision by allowing the Executive to allocate
public money pooled from programmed and
unprogrammed funds of its various agencies in the
guise of the President exercising his constitutional
authority x x x to transfer funds out of savings to
augment the appropriations of offices within the
Executive Branch of the Government. But the
challenges are further complicated by the interjection
of allegations of transfer of funds to agencies or
offices outside of the Executive.
Are the requisites for the exercise of judicial
reviewbeen all complied with in this case, particularly
on the requirement of actual case?
The answer is YES there is an actual case here because
there is this incompatibility of the perspective of the
parties of the constitutionality of this DAP and its
relevant issuances. Therefore, this gives rise to a
conflict of legal rights, and the issues are ripe for
adjudication because public funds have been
allocated, disbursed and have been utilized already.
What about the termination of the DAP? Humana,
seeing that there’s already this problem, gi-terminate
na sa President.
Does the termination of DAP by the President render
this case moot?
Court said NO, because the Court applied here the
exceptions.
Do they have legal standing, the petitioners?
Court said YES, taxpayers, this case involves
disbursement of public funds and therefore they have
standing. Also, this is of transcendental importance.
More on the substance of this case on our discussion
on Article 6.

Kalipunan v. Robredo (2014)
Here, we have a challenge against
constitutionality of RA 7279, otherwise known as
Urban Development Housing Act, which authorizes
evictions and demolitions under certain circumstances
without any court order. And they argued here that
these are informal settlers. That some of these
provisions allowing that to happen offend the
constitutional right to due process because this
provisions allow eviction and demolitions without any
court order, (dapat daw muagi ug due process even if
I am an informal settler). Dapat, there has to be due
process, dili pwede na you will take the law into your
own hands.
The Court did not rule on this case insofar as on the
matter of the constitutionality of the provisions
challenged is concerned because the case has become
moot and the resolution of the constitutionality of the
provisions here is not the lis mota of the case. The
petition fails because it fails to show the essential
requisites that would warrant the Court's exercise of
judicial review. Again, what are the four requisites?
ELLA.
The case here no longer presents a justiciable
controversy with respect to the Mayors of Navotas
and San Juan because they have already evicted the
petitioners at the time of the filing of the petition.
What about the lis mota requirement?
The Court said the resolution to the constitutionality
of this provision, it’s not the lis mota of this case.
When we talk about lis mota, it means that the cause
of the suit or action. Why is there requirement of lis
mota? You, as the challenger of this specific act, in
claiming that it is unconstitutional, why do you have
to prove that this is the lis mota? It is because the
Court is not, dili siya automatic. If there is an issue
presented before it, unconstitutional ang law, dili siya
authorized to automatically hold that act or law
unconstitutional because the Court respects its co-
equal branches: the Legislature and the Executive.
Therefore, it is the burden of the person challenging,
the act of the executive or legislative to be
unconstitutional to prove, the requirements, among
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 45
others, the lis mota. This requirement is rooted in the
principle of separation of powers, and an offshoot of
the
the presumption of validity accorded with legislative
and executive acts that are co-equal branches of
government. So dili basta basta, and if you've claim
that this act or law is unconstitutional, you have now
the burden of the showing first that the case cannot
be resolved unless the disposition of the
constitutional question raised is unavoidable.
United Overseas v. BOC (2015)
Just take not here of another instance or ground by
which the Court may not hear a case. We have the
doctrine of the exhaustion of administrative
remedies. Before it can go to any Court, you have to
have exhausted all your administrative remedies. Dili
pwede as, a general rule, na mu-diretso ka, especially
if the matter can still be resolved by the agency
concerned. It is only an exceptional circumstances as
enumerated by the Court in this case. So we have
here a dispute as to transfer of this condominium unit
mortgage, there was this agreement between the two
parties that after full payment you would transfer,
later on this seller would not transfer the property to
the buyer now because iyaha na diay gi mortage. The
seller already mortgaged it to another entity, and this
entity does not approve of the transfer of the
property to the original buyer and so they went to the
HLURB to settle this matter. This HLURB ruled in favor
of the buyer and declared that the mortgage between
the seller and the creditor, it was null and void and
therefore dapat daw, according to HLURB you have to
transfer this property to the buyer because you
already paid the amount. So, the party here who was
defeated, filed a petition for review again with the
HLURB and the board of commissioners affirmed the
HLURB arbiter’s decision. And so, the bank here,
katong nag mortgage sa property, dili niya gusto i-
transfer to this buyer filed a petition for review under
the CA, and the CA dismissed the case because
according to it the bank here did not exhaust the
administrative remedies available to it, because he
failed to appeal the decision of the HLURB board of
commissioners to the office of the President. In other
words, there is still another administrative remedy

available to this party for a failure to exhaust that
administrative remedy, the case should not be taken
cognizance by the Court.
Is the CA correct here in dismissing the case on the
ground of failure to exhaust the administrative
remedies?
The Court said that the CA is WRONG. As a general
rule, yes, we have this doctrine of exhaustion of
administrative remedies This is another way to
dismiss the case outright. But, the Court enumerated
here the exceptions where even if there is no
exhaustion of administrative remedies, pwede
gihapon, the Court may still resolve the matter.
Particularly, letter (e) if the question involved is purely
legal and will have to be decided by the courts of
justice, the Court said that it is the applicable
exception in this case. The issue here is purely legal
which have to be decided by court of law, so, the CA
was wrong.
SEC v. Baguio Country Club (20150
Here we have the dispute of several stockholders of
this BCCC, an exclusive club. Because there was a
provision in their amended by-laws extending the
term of the BOD or the Board of Directors of this
corporation to two years, according to some of the
stockholders, that, that is prohibited under the
Corporation Code which only limits the term of office
of the board of directors to only one year and so the
case went to the Securities and Exchange Commission
to resolve who’s correct. And, the SEC ruled in favor
of the challengers of this provision of the amended
by-laws. Male daw--this is not consistent with the
Corporation Code and therefore that is null and void.
But this matter was raised still by the corporation, this
BCCC, and it went to the SC on the same issue. While
it the case was pending, the corporation here filed a
motion for relief to admit a manifestation. It
manifested that in a meeting held sometime in 2005,
the BOD already approved the amendment of its by-
laws to remove the two-year term and now one year
nalang. So in other words, there is no more reason for
the Court daw to continur hearing the matter because
the issue is already moot and academic.There's no
need na.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 46
Has the case become moot and academic?
The Court said YES, the case is academic/moot if it
ceases to present a justiciable controversy. In this
case, it happened with the amendment restoring term
of the board to one year, there is no more illegal
provision to speak of, there is no more actual
controversy that warrants the exercise of judicial
power.
DAY06 – JULY 02, 2018
Transcribed by: Laguting
Last meeting, we started some of the many assigned
cases under the concept, topic and conditions under
the exercise of judicial review judicial review. “Sir
ngano daghan kaau cases?”So that you would be
familiar already with this requirement, only to
emphasize the importance of the matter, you can
already enumerate what the requirements before the
courts may entertain questions as to the
constitutionality of act of the executive or a law, what
the exceptions are, how some requirement are
treated, lis mota, locus standi, what are the
exceptions to that rule, mootness—this relates to
actual case and controversy, can the courts still
resolve that even if the case has been rendered moot
and academic by subsequent events? All the cases
assigned answer those question so that you will be
familiar.
GENERAL CONSIDERATIONS: CONDITIONS FOR THE
EXERCISE OF JUDICIAL REVIEW, CONT’D
We stopped at SEC v. Baguio Country Club where the
Court said that there is no need for it to resolve the
matter because of a supervening event, whichis the
amendment of the by-laws, rendered the case moot
before the SC. So they failed the actual controversy
requirement.
Republic v. Cortez (2015)
We have here reverent Claudio Cortez who claims to
be a missionary engage in humanitarian and
charitable activities. He established an orphanage and
school in Punta Verde Palaui Island somewhere in
Cagayan. In 1962 and ever since, he was in peaceful

possession of 50 hectares of land located in the
locality. Now in 1967, former president Marcos issued
a proclamation reserving for military purposes a
parcel of public domain somewhere in Palaui Island.
2,000 hectares of the southern half portion of the
Palaui Island were withdrawn from sale or settlement
and reserved for the use of the Philippine Navy,
subject, however, to private rights if there be any.
More than two decades later, a new president issed
Proclamation No. 447 declaring Palaui Island and the
surrounding waters as marine reserve. Again subject
to any private rights, the entire Palaui Island was
accordingly reserved as a marine protected area
Now, pursuant to this issuances, the navy encroached
daw on the property claimed to be owned by this
reverent Cortez. So, because of this encroachment, he
filed for a petition for injunction to enjoin or stop this
people from intruding into his 50 hectare land before
the trial court. RTC agreed with him that only insofar
as to 5 hectares which he proved that he actually
possessed and by possession acquired ownership
over.
The Solicitor General, in behalf of the officers of the
navy, filed an appeal before the CA. The CA upheld
the RTC’s issuance of this injunction to stop this
encroachment. So the case went to the SC.
Reverent Cortez wants to dismiss this case on the
ground that the Republic, as a party, has no
personality to bring the matter before the Supreme
Court because the Republic was not a party before
the Court of Appeals.
The Court said that even so, the standing requirement
as a rule can be relaxed by the Court under specific
circumstances. They can set aside this procedural
barrier in this case because it is a mere procedural
technicality which can be set aside by the courts in
view of the importance of the issues raise. The issue
raised here involved a massive track of land which is
part of the public property so this is important for
Court to resolve and the same did set aside the
procedural defect on standing.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 47
Insofar as the substantive issue is concerned,
theCourt reversed the ruling of CA and held that
reverentCortez could not possess even the 5 hectares
of property he claimed to own through possession
thereof because it wasn’t proved that that property
from the outset was alienable public land. Before you
can take ownership over a property through
acquisitive prescription, the property must first be
alienable property or is capable of appropriation. That
was the reason why the Supreme Court reversed the
ruling of the RTC.
Regalian Doctrine
All lands of the public domain belong to the State. All
lands not appearing to be clearly under private
ownership are presumed to belong to the State. All
public lands remain part of the inalienable land of the
public domain unless the State is shown to have
reclassified or alienated them to private persons.
(There has to be proof that the State allowed the
property to be alienated.)
Rev. Cortez was not able to prove that this property
he possesses has been classified as alienable property.
SM Land v. BCDA (2015)
We have this BCDA law under RA 7227. There was this
authority, this entity which was created. This BCDA
opened for disposition properties somewhere in
Taguig. These properties formerly used for defense
purposes now converted to alienable property.
Because of that, SM Land Inc. (SMLI) wanted to get
hold of that property so it submitted to BCDA an
unsolicited proposal for the development of this land
through a public-private joint venture agreement.
Because of that BCDA created a joint venture
selection committee. This committee negotiated with
SMLI. They agreed to pursue this competitive
challenge procedure as laid down by the Neda JV
guidelines in developing properties or infrastructures
of such sort and so they embarked on detailed
negotiations until a certification of successful
negotiation was reached. In this certification the
BCDA undertook to subject the original proposal of
SMLI to a competitive challenge. (This is a mode
where other prospective bidders can compete with

SMLI). However, instead of proceeding with this
competitive challenge, the BCDA wrote a letter to
SMLI stating that it will welcome any voluntary
conditional proposal, etc. but eventually the BCDA
itself categorically recommended to the Office of the
President the cancellation and termination of this
competitive challenge. So na-shock si SMLI, stating
that they had an agreement, “Why did BCDA not
follow that agreement?” SMLI urged BCDA to proceed
with the competitive challenge. Eventually,
Supplemental Notice No. 5 was issued informing that
the BCDA shall no longer dispose this property
through competitive challenge. In other words, the
agreement was not followed which caused SMLI to
sue BCDA before the courts.
Did the BCDA abused its discretion in issuing the
Supplemental Notice No. 5, cancelling the competitive
challenge?
YES, they already have an agreement.
You already have an agreement to that certification
and therefore you comply with your obligations so
cannot unilaterally reneged your obligation and return
the money. SMLI here has the right to the completed
competitive challenge pursuant to the Neda JV
guidelines and the certification issued by the BCDA.
There was a completed contract between the parties
and must be respected and followed. In 2015, the
BCDA move for the reconsideration of that decision
and the Court denied the motion for reconsideration
(MR) still on the ground that there was a valid
agreement between the SMLI and BCDA. There is a
contract that must be followed. And take note, all
cases covered by this decision are decided in a
division, not en banc, which is material to our
discussion later. The Court said, the subsequent MR is
prohibited pleading in the Rules of Court.
Why are subsequentMRs look upon with disfavor by
the courts?
Because, there has to be this attainment of finality of
judgement because you are in a suit so there has to
be a winner. It does not stop at you winning the case,
there has to be an execution of the favorable
decision. The winner should be able to enjoy/reap the
benefits of his victory. It cannot be thwarted by the
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 48
other party by cleverly concocting grounds to reverse
the ruling. There has to be an attainment of finality of
judgement so that there would be order. If we allow,
according to the SC, the careless recognition of
subsequentMRs ad infinitum, this would affect the
finality of judgement. The judgement, in its finality,
maybe staved off indefinitely, depending on the
party’s ingeniousness or cleverness in conceiving or
formulating additional flaws. In fact if the grounds on
your 2nd motions were not in the stated in your 1st
MR, they are deemed waived as a rule. All cases must
reach a binding conclusion and must not remain
indefinitely afloat in limbo, otherwise, the exercise of
judicial power will be for naught/futile if court
decisions can be effectively thwarted at every turn by
dilatory tactics to prevent the ruling from attaining
finality.
There is only one exception: if your 2nd MR is
meritorious in the higher interest of the State, which
is not present in this case—that there was no proof
that the 2nd MR filed by BCDA was in the nature or
involved the higher interest of the State. The 2nd MR
here merely reiterated the same arguments filed
during the original MR. “
Effects of finality of judgement:
1. This judgement has to be executed;
2. It can no longer be change (rule on
immutability of judgement)
This is for the purpose of orderly administration of
justice, the noble role of this immutability is to write
finis the dispute once and for all. Without this rule,
there would no end to litigations.
Exceptions to this rule of immutability:
1. Correction of clerical errors;
2. The so called nunc pro tunc entries which
cause no prejudice to any party;
3. Void judgements.
As we mentioned earlier, all three cases were
resolved by the SC in a division. Now, BCDA now
argues that the case should be decided by the Court
en banc as provided in Section 4, Paragraph 2, Article
VIII of the Constitution (this enumerate the instances
where the SC en banc will decide the case.) They

argues that this case falls under “Presidential order or
instruction” because the Supplement Notice No. 5
was an act of the Executive, making it a presidential
order and the matter should be decided by the
Supreme Court en banc.
The Court said NO, this is not applicable to case cited
by the BCDA because it involves an appointment. In
any matter, the President did not issue an order or
Presidential issuance in intimating to the BCDA that
he wishes the competitive challenge to be cancelled.
There is no basis to invoke that provision in Art. VIII.
There was no document authored or signed by the
President, therefore, it does not involve a presidential
order or instruction calling for an en banc hearing.
Now, there are also parties here that want to
intervene (Department of National Defense and AFP).
Why? These two entities claim that they are the
statutory beneficiaries of the proceeds if the property
is sold there they can intervene.
Does the national defense and the AFP have legal
standing or interest in order to intervene?
Court said NO.To have a legal interest, it must be
direct and immediate, not contingent, indirect,
remote, or conjectural. In this case, the right of the
AFP are merely inchoate (meaning dependent upon
the happening of a condition) because right to the
proceeds is not yet actual because it rests on the
success of the bidding process. Since there was still no
winner, there is no right to speak of over the
proceeds.
Osmena v. PSALM (2015)
Senator Osmena was the chairman of the joint
national power committee created by law. He wants
to stop the sale of Naga power plant to SPC power
corporation (SPC). According to SPC, it has the power,
the right to top—there is this procedure in the bidding
process. Osmena wants to enjoin that. SPC argues
that Osmena does not have the standing to file this
case before the Supreme Court. Why? “This does not
involve a law nor does it involve a taxpayer, why do
you have standing? What is your interest? You will not
suffer any personal injury. Why would you sue me?”
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 49
Does Osmena have standing?
The Court said that HE DOES NOT, but it did not
dismiss the case because of this procedural infirmity.
When do legislators have standing?
When there is encroachment, limitation on their
prerogatives powers and privileges as granted in the
Constitution. Here, there is no allegation of
usurpation of legislative functions but only a matter of
the sale of this power plant owned by the government
to a private entity.
What was the basis by which Osmena filed this case?
He is the chairperson of the congressional power
committee. However, the Court said that his position
as chairman by itself does not vest in him the standing
to institute the present suit.
Nevertheless, this rule on standing is a matter of
procedure and may be relaxed when there is a matter
of:
1. transcendental importance
2. overreaching significance to society
3. paramount public interest.
Why is this present in this case?This involves the
privatization of power plants in a manner that ensures
the reliability and affordability of electricity in our
country.
Public suit – if the proceeding involves an assertion of
public right, the mere fact that petitioner is a citizen
satisfies the requirement for personal interest.
Osmena v. Abaya (2016)
Osmena challenges the awarding of the contract for
the Mactan Cebu International Airport (MCIA)
project—restrained the DOTC(in charge with the
project) from awarding the contract to this two
contractors (GMR infrastructure limited and
Megawide Construction Corporation).
Anyway, going back to the project—this Mactan-Cebu
International Airport (MCIA) Project consists of the
construction of a new passenger terminal with all
associated infrastructure facilities in the airport. So
iimprove nila under the BOT (Built-Operatie-and-

Transfer) law. Pursuant to that, this DOTC created a
Pre-qualification, Bids and Awards Committee (PBAC).
This is the committee that screens the bidders, check
nila if they are qualified and they rank them kung
kinsa ang highest bidder so that they will be the one
awarded with the contract. After the submission of
the bids, the financial bids were ranked in terms of
premium to the government. Usually, the standard
used by this PBAC is they would look for this lowest
bidder. They will build this infrastructure for this much
cost. But here, they ranked the bids in terms of
premium to the government such that all bids
received by the DOTC were premium offers meaning
the money will go directly to the government and
would come on top of the cost to develop the airport.
They were bidding the amounts that they guaranty na
ma-recieve sa government after they build the project
or the BOT transaction. This is the amount of revenue
na makuha sa gobyerno. There is this winning bidder
GMR Infrastructure & Megawide Consortium but was
challenge by Osmena, contending that this contractor
should have been disqualified from the bidding due to
lack of financial and technical capability. Also, because
of unsavory record involving the construction of other
international airports.
This case went to the Supreme Court, and one of the
arguments to dismiss the case is the question of legal
standing.
Public Suit
The Court discussed concept of a public suit here. In a
public suit, the plaintiff, who asserts a public right in
assailing an alleged illegal act, does so as a
representative of the general public. You represent
the public, which is why it is called a public suit. In our
jurisdiction,this could be considered as a citizen suit
or a taxpayer’s suit. These two suits are not similar.
 Citizen suit – you argue or allege a violation of
a public right.
 Taxpayer’s suit – you allege that there is
illegal disbursement of public fund.
Who may institute public suits?
In our jurisdiction, citizens and taxpayers.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 50
There is, however, a limitation. It does not mean that
you alleged that you are a citizen and there is a
violation of public right, or you’re a taxpayer that at
once the Court would check that requirement that
you have a standing because there is a limitation to
prevent just about any person from seeking judicial
interference in any official act or police of the
government. If wala ning limitation, each one of us
could file a case against the government left and right.
So, the Court devised/adopted this direct injury test.
Direct injury test– for a public individual to invoke
judicial power to determine the validity of an action
whether executive or legislative, he has a must show
that he has sustained a direct injury as a result of the
action. It is not sufficient that he has general interest
common to all members of the public, even he is
representing the public there must be a showing of
direct interest/direct effect or injury on him.
Take note of the many instances where the Court
enumerated. When you are a citizen, what do you
want to show? A taxpayer? If you are a legislator? If
you are an organization purportedly representing the
entire public or rights of all of its members? There is a
enumeration here that you have to allege that you are
representing this and also that you have to show
direct injury.
Another one of the petitioners here, BPM, alleges
direct personal injury from the increase of fees from
MCIA.
Does the two, Osmena and BPM have legal standing?
The Court said that Osmena and BPM have standing
because the requirement is relaxed because the issue
involves a matter of transcendental importance.
Was the case moot?
Court said NO.
The fact that the contract was awarded to the GMC
does not end the issue of whether or not it was
qualified in the first place. The subsequent issuance of
the notice of award did not remove the issue of this
contractors qualifications.

Unduran v. Aberasturi (2015)
Unduran et. al are members of Talaandig tribe living in
the land located in brg. Miarayon, Talakag, Bukidnon
which they inherited from their forefathers. They
came to be IPs (Indigenous Peoples). Abelasturi claim
that the property that is inside the ancestral domain
of this Unduran et al belonged to them, that they are
the lawful owners and possessors of this parcel of
land (105 hect.). Because they could not reconcile so,
Aberasturi filed an action reinvidicatoria before the
RTC to recover possession. The IPs here filed a motion
to dismiss on the ground that the RTC has no
jurisdiction on the matter but it is the National
Commission on Indigenous Peoples (NCIP). That was
denied by the RTC which means the RTC held that it
has jurisdiction. The CA affirmed the decision to deny
the motion to dismiss.
Does the RTC have jurisdiction (not the main issue)?
Court said YES, because the complainants before the
RTC validly made the case for action reinvidicatoria.
Do the IPs have standing to file the case before the
SC?
Court said YES. The fact that they are party of interest
can be gleamed from their entry of appearance. They
alleged in there documents/pleadings that they are
beneficiaries of this Certificate of Ancestral Domain
Title (CADT) issued by the NCIP in the name of the
Talaading IPs. They were also able to present a
certification that the disputed land is within the area
covered by the CADT and that the beneficiaries
involves the tribes in that locality.
These are the ancestral domains daw of the Miarayon
etc. (mga tribes there). Faced with this documents, it
moved to the party assailing the standing of
complainants to prove that they do not have standing,
bur was not proved by the other party. Therefore the
complainants here, IPs, have standing.
Laude v. Ginez-Jabalde (2015)
This the case of Jennifer laude who was murdered by
a 19-year old marine, Scott Pemberton. The sister of
Jennifer filed a complaint for murder before the City
Prosecutor’s Office (CPO). After preliminary
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 51
investigation, an information was filed for murder.
During the pendency of the case, laude filed a motion
to compel the AFP to surrender the custody of
Pemberton to the Olongapo city jail.
Judge Ginez-Jabalde denied this urgent motion so the
case went to the SC. Pemberton, before the SC,
argues that laude is only a private complainant and
therefore lacks the legal personality to file the
motion.
Why is that?
For you to be able to file that motion before the
court, it has to have the conformity the public
prosecutor, it is now that State. When you file the
case before the CPO, you are still the complainant.
However, upon the finding of probable cause to file
the case before the courts, the complainant now
would be People as the real party-in-interest
represented by the prosecutors.
Since she was not able to get the conformity of the
public prosecutor, according to Pemberton she does
not have legal standing.
Does Laude have standing?
Court said NO.
In all criminal cases, it is the people that is the real
party-in-interest which means that allowing a private
complainant (e.g., rape case) to pursue a criminal
action is only a rare exception. If you want any relief,
you course that through the prosecutor. You have to
get his/her conformity.
In this case, Laude wasn't able to prove that the judge
acted with grave abuse of discretion in denying her
motion. She wasn't also able to prove that the
exception applies to this case.
What is the exception allowed in the rules where a
private complainant will be able to pursue a criminal
action in your own behalf?
Only when there is denial of Due Process.
Laude wasn't able to prove that her right to due
process was denied and that the non-conformity of
the public prosecutor (PP) on her motion was not

given by this PP due the fact that she exercised her
discretion gravely.
Side issue: Constitutionality of the Visiting forces
Agreement (VFA)
The constitutionality of the VFA is not the lis mota of
this case. The resolution of whether or not the VFA is
constitutional or otherwise will not resolve whether
or not the judge acted with grave abuse of discretion
in denying her motion. Also the constitutionality of an
official act can be only the subject of judicial review if
it is raised as a direct or the matter at hand. It must be
the main issue, not mere a collateral matter, because
of the lis mota requirement.
International Service v. Greenpeace (2016)
We have the BT Talong, GMO. Because of the
experiments done on the BT Talong, the parties of
Greenpeace are concerned that the introduction of
these products will probably infect or affect other
talongs in the market.
As early as 1990, Pres. Aquino signed an EO which
created the National Committee on Biosafety of the
Philippines (NCBP). It was tasked to evaluate potential
hazard involving genetic engineering experiments.
And there was this formulation by the NCBP of
Philippine Biosafety Guidelines. In 2001, Pres. GMA
issued a policy statement, Policy of Promoting Safe
and Responsible Use Modern Biotechnology. Pursuant
to that, the Department of Agriculture issued an
administrative order no. 8 providing for the rules and
regulations for the importation and release to the
environment of plants and plants products derived
from the use of modern technology. Because of these
rules and regulations, there was this memorandum of
undertaking thinking that these guidelines already
provides for the safeguards and a memorandum of
undertaking was executive with several parties in
pursuance to the collaborative research to
development project on eggplants that are resistant
to the fruit and shoot borer. So experiments where
conducted and there was a proposal to conduct a field
study. There was a proposal to conduct a field study
and an experiment was committed and completed
sometime in 2009 and field testing of BT talong was
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 52
commenced and eventually concluded. They were not
able to continue after the field testing because
Greenpeace et al filed a petition for a Writ Kalikasan
etc, Writ of Continuing Mandamus, and a Writ of
Temporary Protection Order because these bt talong
failed trials, which has been concluded, violate their
constitutional right to health and balance ecology.
Why?The BT Talong was presumed harmful to human
health and environment among other things.
One of the issues is the standing of Greenpeace
The Court again had a lenient stance on this
procedural requirement. The standing requirement is
a matter of procedure which can be relaxed if the
matter is of transcendental importance.
Also on take note of the case Oposa v. Factoran where
the Court, a landmark case, allowed present
generations to represent generations yet unborn as
long as involves the right to a balance and healthful
ecology.
Concept of inter-generational responsibility – ordinary
citizens not only have legal standing of the
enforcement of their own environmental rights, but
they could do so as well of their generation and of
their future generation.
How about to the argument that the case has
rendered moot by the termination of all the field
trials.
The Court said that this mootness argument has many
exceptions: capable of repetition yet evading review
etc. The court said that this does not only fall under
capable repetition yet evading review exception, but
also there are human and environmental health
standards exposed by the introduction of this
talong(which is a staple vegetable among Filipinos)
thus making it an issue of paramount public interest.
NOTE: In 2016, the Court reversed its ruling. The Court
reversed itself on technicality based on the mootness
principle.
Exception to the mootness:
1. grave violation of the constitution

2. exceptional character of the situation and the
paramount public interest is involved
3. constitutional issue raised requires
formulation of controlling principles to guide
the bench, the bar, and the public
4. the case is capable of repetition yet evading
review.
This case falls under 2 and 4 based on the first
decision. In reviewing, the court said that they made a
mistake because there is no paramount public interest
exception that could be applied in this case because
the issue was mooted by the expiration of the bio
safety permits and the completion/termination of the
BT Talong field trials. Therefore, these events negated
the necessity sought for by the respondent. There was
no longer any field tests to enjoin.
Since the matter did not go further than the field
testing phase, it cannot be commercially distributed.
It stopped in the field testing because of these issues,
and it no longer continued therefore there were no
paramount interest to speak of. The case was not also
capable repetition yet evading review because the
administrative order relied on was already
superseded by another issuance by JDC which
provided a new regulatory framework for the conduct
of field testing. So reversed.
DAY 07 – JULY05, 2018
Transcribed by: Alamares
GENERAL CONSIDERATIONS: CONDITIONS FOR THE
EXERCISE OF JUDICIAL REVIEW, CONT’D
Kabataan Party v.COMELEC (2015)
Facts
Kabataan Party questioning the constitutionality of RA
10367, particularly on the mandatory biometrics
registration system. This law requires the registration
of biometrics of the voter. Before you can vote you
have to enroll in the biometrics registration and the
purpose of which is to establish a clean, complete,
permanent and updated list of voters.
Pursuant to this law, COMELEC issued resolutions
requiring the registration of voters and those who do
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 53
not have biometrics or incomplete biometrics data are
considered as deactivated voters and shall not be
allowed to vote. The period by which these people
can enroll has been extended several times, among
other things. Then, after the required period by which
you can register, you can no longer vote in the May
2016 elections; this was the recent presidential
elections. This was challenged by Kabataan Party et.
al. because according to them this disenfranchises
voters. It gives a substantial qualification where there
is a penalty of deactivation. So ma-defeat daw ang
right to vote sa mga tao therefore it is
unconstitutional as well as the COMELEC issuances
pursuant to this law.
Issue
Is the law as well as the COMELEC resolutions
unconstitutional?
Ruling
The Court said that they are not. They are all
constitutional; they are not unconstitutional.
Now, procedural objections were raised in order to
dismiss this petition and the Court brushed them all
aside as mere rules of procedure, technicalities that
should not cause the dismissal of the complaint
because, among other things, the petition is hinged
on an important constitutional issues pertaining to
right of suffrage and therefore the matter is one of
transcendental public importance and compelling
significance. And even if the petition has several
procedural defects that Court deemed it proper to
brush these aside and instead resolve the case on the
merits. In fact, this case demands immediate
adjudication in view of the critical preparatory
activities that are currently being undertaken by the
COMELEC with regard to the May 2016 elections. So
transcendental importance as well as imperative to
resolve this case as soon as possible because of the
event which is the May 2016 elections. Anyway, what
is the purpose of these rules of procedure? These are
merely tools designed to facilitate the attainment of
justice so cannot use them to defeat attainment of
justice.

On the matter of the substantive issues, as we already
said earlier, the law is not unconstitutional as well as
the issuances of the COMELEC on the same law.
Now, what about your right to vote? This right of
suffrage, particularly Article V of the Constitution, is
our right to vote. Is it a natural right? Is it a basic,
unqualified, absolute right? No. The right to vote is a
right created by law. It is a privilege granted by the
State to us who are most likely to exercise for the
public good and therefore it can be regulated.
Under the 1987 Constitution, Article V, Section 1, it
prescribes the qualifications before one can exercise
the right to vote:
a) It may be exercised by all citizens of the
Philippines not otherwise disqualified by
law;
b) At least 18 years of age;
c) Shall have resided in the Philippines for at
least 1 year; and
d) Resided at least 6 months in the place
wherein they proposed to vote
immediately preceding the elections.
In other words, your right to vote is not automatic; it's
not something that is absolute, there are still
qualifications. And what is the contentious
requirement here is that you must not be disqualified
by law. In other words, the law can disqualify you
from voting. This qualification reflects the franchised
nature of the right of suffrage; it is subject to
regulation. The State may therefore regulate this right
imposing statutory legal disqualifications with the
restriction, however, that these disqualification
should not amount to literacy, property or other
substantive requirement.
In the same provision, Section 1, Article V:
Section 1. Suffrage may be exercised by all citizens
of the Philippines, not otherwise disqualified by
law, who areat least eighteen years of age, and
who shall have resided in the Philippines for at
least one year and in theplace wherein they
propose to vote, for at least six months
immediately preceding the election. No literacy,
property, or other substantive requirement shall
be imposed on the exercise of suffrage.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 54
If you want to expand the limitations, before one can
exercise the right to suffrage, it must not involve
literacy, property or other substantive requirement.
But in other limitations imposed by law that do not
touch on those three, then they can be validly
imposed and that is what happened in this case. So
the right to suffrage may limited by law, you can be
disqualified by law.
The Omnibus Election Code, in fact, provides for
several disqualifications under Section 118.
Is this biometric requirement even a qualification to
vote?
The Court said that it is NOT a qualification, but just a
form of registration. There is a difference a
qualification and a registration. The act of registering
is only one step towards voting and it is not one of the
elements that makes a citizen a qualified voter
because one may be a qualified voter without
exercising without exercising the right to vote. The
registration here is a form of regulation, it is not a
qualification on the right of suffrage.
Now, according to the Kabataan Party, let us use this
strict scrutiny test because we are talking about a
right in the Constitution which is being restricted
because of this regulation. The Court said that even if
using the strict scrutiny test, which is used where
there is encroachment of fundamental rights, this
regulation passes the test. This biometrics
requirement advances a compelling State interest and
it is designed to facilitate the conduct of orderly,
honest and credible elections if not eliminating the
perennial problem of flying voters as well as dead
registrants. Plus it is also the least restrictive means in
achieving that interest. It is not so cumbersome to
have yourself registered in the biometrics system.
So the Court said that this requirement is not
unconstitutional.
De Leon v. Esperon (2015)
Facts:
This we have a case against the units of the Philippine
Marine Corps and PNP-SAF because they joined the
protest march of militant groups, etc. calling for the

resignation of the former president GMA. And so
because of this, there was an investigation conducted
and several officers of the PMC and the PNP-SAF were
recommended to be charged before a general court-
martial for violations of the applicable articles of war.
Eventually, after investigation they were charged with
violations of several articles in the articles of war.
Issue:
Now they went to the SC because they argue that the
creation of this special general court-martial no. 2, the
court that is supposed to hear the cases, among
others, violates the right to due process of the
Constitution etc.
Ruling:
The Court said that this case is already dismissible on
the ground of mootness because prior any resolution
to annul this memorandums as well as the creation of
this court-martial would no longer serve any purpose,
no practical value, because prior to the resolution of
this case, their cases before these courts have been
dismissed. In other words, the case has become moot
and academic. In fact, the special general court-
martial have long been dissolved and the petitioners
here are already released from confinement.
Resident Marine Mammals v. Reyes (2015)
Facts:
In this case, we have a question on standing. Why?
There are whales, dolphins, tortoises, and other
cetacean species which inhibit the tanon strait and
they also have their stewards/caretakers. So what is
the issue about? There was this contract between this
JAPEX, a firm, suggesting to conduct a geophysical
survey and exploration of this tanon strait. The
Government and this JAPEX entered into an
agreement, which became G-SEC 102 and later on SC-
46. The purpose of this contract was to explore,
develop, produce petroleum resources in the tanon
strait and so these creatures, through
representatives or stewards filed a case to enjoin the
operation of SC-46. In the meantime, JAPEX already
began to drill and explore and it is argued by their
stewards that there has been fishkill; there have been
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 55
significant reduction in the catch. In other words, the
water has been contaminated.
Issue:
1. So they filed a case to stop this because this
contract, aside from violating the
constitutional right to balanced ecology, also
does not meet some constitutional
requirements for entering to such contract. As
a procedural matter, the respondents in this
case, the Government, challenged the
standing of the stewards.
2. Also, no. 2, procedural issue is that the case
has already became moot.
Ruling:
The Court said, on the mootness, it is indeed moot
because the contract has already been done. But even
if the case is already moot, we already know the
exception to the general rule, if:
1. there is a grave violation of the Constitution,
2. the exceptional character of the situation and
the paramount public interest is involved,
3. when the constitutional issue raised requires
formulation of controlling principles to guide
the bench, the bar and the public, and
4. the case is capable of repetition yet evading
review.
The Court said that it is necessary because almost all
of the foregoing exceptions are present in this case.
So take note that in this case, the Court said that it is
not required that all must be present because almost
all is allowed.
Now, on the important matter of standing, these
resident mammals through their stewards, claim that
they have the legal standing to file the action because
they are these creatures thatstand to be benefitted or
injured by the judgement in this case citing, Oposa v.
Factoran, the right to sue for the faithful performance
their
of intentional and municipal environmental laws are
created for their favor and their benefit. Therefore,
they have the right the demand their rights, benefits
under those agreements and laws. Plus, they floated
this concept of epistolary jurisdiction. The Court has
epistolary jurisdiction.

What is theepistolary jurisdiction of the SC? In
another jurisdiction in India—it is that which has
something to do with public interest litigation.
Meaning if it involves the public, the requirement on
standing should be liberally construed.
What is the purpose of this public interest litigation,
epistolary jurisdiction? Procedure tend be relaxed to
meet the ends of justice. The purpose of this public
interest litigation, is to promote the public interest
which mandates the violation of the legal or
constitutional rights of the poor, downtrodden,
socially and economically disadvantaged should not
go unredressed just because there is no proper party
to the suit. So that is the concept of epistolary
jurisdiction. (Pwede daw irecognize ang case sa
Supreme Court, even daw if walay standing ang
parties or the requirement of standing should be
relaxed.)
Did the SC, in this case, give legal standing to the
resident marine mammals?
The Court did not rule on that issue. It did not
categorically said that they have standing but it
invoked the provisions of the rules of procedure for
environmental cases and these rules eliminated the
requirement of legal standing for these resident
marine mammals. Locus Standi in environmental
cases have been given a more liberalized approach. In
fact, the rules of procedure for environmental cases
allow for a citizen suit and permit any Filipino citizen
to file an action before a court for violation of our
environmental laws. So any Filipino citizen, in the
guise of a citizen suit that can sue before the court, in
representation of others including minors
generations yet unborn. So this is the pervasive
approach provided by the rules of procedure for
environmental cases.
And more on the discussion of locus standi, the court
emphasized in ruling in Oposa v. Factoran, the
concept of intergenerational responsibility insofar as
the right to a balanced and healthful ecology
concerns. (So very lenient ang standing requirement if
it involves the invocation of this right to a balance and
healthful ecology).
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 56
Who has standing here? The stewards. What about
the substance, is the SC-46 valid? The Court nullified
this; SC-46 is null and void. Why? It violates several
provisions of the Constitution and also the law. Under
Article XII, Section 2, there are requirements that this
will be construed as a technical agreement between
our country and another entity. The President, before
he can enter into this contract, shall notify the
Congress of any contract entered into in accordance
with the provision under Article XII, Section 2. In this
case, there was no notification to the congress on this
kind of contract.
This service contract should also be crafted in
accordance with a general law that will set a standard
or uniform terms, etc. The Court said here that indeed
there is a law that could fall under this requirement:
PD 87, but there is still other requirements. While this
law is sufficient to satisfy the requirement of a general
law, there is absence of two other conditions: (1) that
the president should be a signatory to SC-46 and (2)
that the congress should be notified of the contract.
And these requirements are required by the
Constitution. Out of three, only one is satisfied.
Rappler v.. Bautista (2016)
Facts:
Here we have an agreement between the COMELEC
and Rappler. They have this Memorandum of
Agreement (MOA) on the broadcast of this Pilipinas
Debates for this presidential and vice presidential
candidates which the COMELEC was organizing. And
the Rappler and Google were tasked to do the online
coverage. However, there was a provision in the MOA
or
which limits the online streaming: the imposition of
maximum of two minutes of debate excerpts for news
reporting.
So it is argued by Rappler that this provision should
not be imposed because this was not agreed by them.
And as a procedural issue on the matter, the case
went to the SC.
Issue:
Does it suffer from procedural defects?
Ruling:
 CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 57

Probably, but the Court said that it should not be be considered as capital expenditure but should be
dismissed solely because it has procedural defects considered instead patronage capital, which is an
because it can liberally set aside procedural lapses in investment that must be accounted for and could be
cases involving issues of transcendental importance. withdrawn by the member-consumers. If that is not
the treatment, it could constitute as deprivation of
This matter is of transcendental importance as it
private property without payment of just
illuminates the public as to the platform, propaganda
compensation.
of candidates to the president and vice president
positions. What did the court do in this case here? It dismissed
the case for several procedural defects. And the
As to the issue on substance, can the COMELEC
defects that we'll be discussing are the defects that
impose these limitations? The Court said that it
are pertinent to our topic. Standing, many of the
should not impose these limitations. Under the MOA,
petitioners here do not have standing but some of
the networks involved are mandated to promote the
them qualified: Ping-ay and Ramirez. What about the
dates for a maximum audience, and the function of
other petitioners? What about the NACEEC (National
this debate is to give the widest dissemination of the
Alliance for Consumer Empowerment of Electric
debates to the public. The MOA has not reserved or
Cooperatives)? It was not shown that the respondent
withheld the reproduction of the debates to the
electric cooperatives are members of NACEEC. Also,
public but has, in fact, expressly allow the
there are other qualified electric cooperatives who
reproduction of the debates subject to the copyright
are not impleaded in this petition. What about
conditions. The only limitations, therefore in the
standing for our legislators? (This should be a
distribution of broadcast, streaming, is copyright
legislator's suit) The Court said that there was no
conditions. Once met, there is no need to impose the
specific allegation of a usurpation of the legislative
2-minute restriction.
function and so it cannot be considered as legislator's
After those requirements are fulfilled, then the suit.
broadcast should proceed with the streaming. The
Issue:
purpose of the debates here, the Court emphasized,
Is the issue here of transcendental importance that
for the benefit of the electorate to assist us in making
would allow for the relaxation of the rules?
informed decisions during the Election Day. It gives us
the opportunity to be informed of our candidates' Ruling:
qualifications and track record, platforms and The Court said that it is not of transcendental
programs to answer the significant issues of national importance.
concern. Therefore, the debates should be allowed to
Requisites of transcendental importance:
be livestreamed on other websites including
Rappler's. 1. Public character of the assets involved,
2. Presence of a clear disregard of the
Rosales v. ERC (2016)
Constitution or statutory prohibition,
Facts: 3. Lack of any other party of a more distinct,
On the matter of this MCC (Member's Contributions direct, and specific interest.
for Capital Expenditures), later renamed as RFSC
The requirements no. 2 & 3 are lacking in this case. In
(Reinvestment Fund for Sustainable Capital
relation with the No. 2 requirement, the Court said
Expenditures). The electric cooperatives here are
that there is no disregard of the Constitution or
challenging the imposition of the ERC (Energy
statutory prohibition. There is no such disregard and,
Regulation Commission) of these expenditures or fees
in fact, the ERC is empowered under the law to issue
because according to them, this imposition should not
these costs, to impose these costs on these electric

cooperatives. Anent to the No. 3 requirement, the
standing requirement, the Court said that most of
those who petitioned in this case has no locus standi
and also there were parties who were not impleaded
and their not being impleaded would not resolve the
case in its entirety. Ping-ay and Ramirez and some of
the petitioners have standing; they are real parties-in-
interest. As the Court said here, Ping-ay is a member-
consumer of this electric cooperative and Ramirez is a
spouse of a cooperative member. So they have
standing; they stand to be benefited or injured by the
decision.
There is absence of the requirement that it lacks any
other party with a more direct and specific interests.
There are parties with a more direct and specific
interest but they were not impleaded.
Saguisag v. Ochoa (2016)
Facts:
Questioning the constitutionality of the EDCA
(Enhanced Defense Cooperation Agreement), an
executive agreement entered into by our country and
the US. More on this on the powers of the chief
executive in Article VII. We well just tackle the
procedural issues for now.
Issue:
Who questioned the validity of this EDCA? What is the
defect in the EDCA? Primarily, they are arguing that
this EDCA should be contained in a treaty and not a
mere executive agreement. But procedure—are the
essential requisites of judicial review present in this
case? Should the Court even take cognizance of this
case?
Ruling:
The Court said that YES.
The Court emphasized here its power to resolve cases
and declare whether or not an act or law is
unconstitutional. But this power should always be
exercised by the SC with restraint. Only it cannot be
completely avoided. Why? Because you are going to
rule on action of a co-equal branch of the government
and therefore you have to tread carefully which is not
something that you can just do arbitrarily.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 58
To emphasize that, The Court, again, quoted the
requirements before it can exercise its power of
judicial review questioning the constitutionality,
among others, executive and legislative acts.
Do the petitioners in this case show the presence of
an actual case or controversy? The Court said that
there is an actual case at controversy. The senate has
already expressed its opinion through a resolution
that this EDCA should be contained in a treaty
because it involves the agreement on the matter of
foreign military bases. On the other hand, the Office
of the Solicitor General claims otherwise. Therefore
because of these conflicting legal positions, there is an
actual controversy. There is an infringement,
supposedly, of a legislative prerogative.
Is this case ripe for adjudication? The Court said that it
is because there is already a performance of an
official act by the executive department that has led
to the entry of the—enforcement of this executed
agreement. Since nagging effective na ang EDCA,
therefore, the issue at hand has become ripe for
determination.
The petitioners here, Saguisag, et. al, do they have
legal standing? The Court said that they do not but
still since the matter raises issues of transcendental
importance, then they will hear this case. The Court
emphasized that the petitioners here do not qualify as
suitors in the citizen, taxpayers, legislator capacity.
Therefore, they suffer from lack of standing.
Not a citizen suit because there is no, aside from their
general statements that they are involved the
protection of a public right and assert constitutional
rights, they failed to make any specific assertions the
particular public right that could be violated by this
EDCA; so not a citizen's suit.
Not a taxpayer's suit because this suit contemplates a
situation where there is already an appropriation or
disbursement of public funds. Here there is no such
thing.
Not a legislator's suit, particularly that of the
members of the House of Representatives. Here the
petitioners are representatives of Bayan Partylist.

The Court said that these are not the legislators that
should file this case. It should be the Senate
themselves that should be the petitioners because
they will be the one who will be prejudiced by the
non-containment of this EDCA in a treaty since they
are the ones that concurs with treaties and not
members by the house of representatives. In other
words, none of the petitioners here have standing.
Again, we apply the doctrine of transcendental
importance. The petitioners here have presented
serious constitutional issues. Why? There is a
requirement in the Constitution that before you can
enter into an agreement involving foreign military
cases, it has to be in a treaty and duly concurred in by
the Senate; the EDCA here is contained in an
executive agreement. So there is seeming
noncompliance to the requirement of the
Constitution.
GENERAL CONSIDERATIONS: FUNCTIONS OF
JUDICIAL REVIEW: CHECKING, LEGITIMATING, AND
SYMBOLIC
Why does the Court exercise its powers of judicial
review? There are several functions:
1. Checking – The Court negates the act and
declares it unconstitutional. Checks whether
or not this law is inconsistent with
Constitution.
2. Legitimizing – it declares an act as not
unconstitutional if it is not unconstitutional.
3. Symbolic – this is exercised by the Court even
if the conditions for Judicial Review because
there is a need for the Court to lay down rules
and principles which would serve as the guide
for the bench, the bar and the public for
future cases of similar character.
So those are the three functions of judicial review.
Javier v. COMELEC (1986) - Recitation
Sir Gil (G): What happened in this case?
Student (S): In this case, the contenders Paficador and
Javier wanted to win as members of the Batasang
Pambansa and Pacificador was the winner. However,
Javier was not satisfied that Pacificador won. He
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 59
ordered for the questioned canvass on the election
returns.
G: So there are two candidates here for the position
as the member of the Batasang Pambansa
representing Antique; we have Javier and Pacificador.
We have an election etc. Who was the winner of the
election?
S: Pacificador
G: And then, what did Javier do?
S: He questioned the canvas of the election returns
before the COMELEC.
G: And then, what did the COMELEC do? Did it uphold
the protest?
S: Dismissed.
G: What body of the COMELEC dismissed the
complaint? Is it en banc or division? What number of
division?
S: 2nd division of the COMELEC
G: So he filed for a case before the COMELEC because
there was a question on the canvass of the votes. But
the COMELEC dismissed the case and in fact it
proclaimed Pacificador as the winner. And so, Javier
went to the SC to challenge the decision of the
COMELEC. In the meantime, what happened to
Javier?
S: Javier died; he was gunned down.
G: Yes, he was shot dead, in cold blood and broad
daylight. (Just like what was happening now.) So while
the case was pending, he died and then the EDSA
revolution happened. Because of this EDSA revolution
as well as the death of Javier, is there a need for the
Court to resolve the case? What did the EDSA
revolution do? Diba you said earlier, it was a
revolution. So it changed the government; the overall
of the existing legal structure, governmental
structure. It was overhauled by this revolutionary
government. The Batasang Pambansa was gone and
additionally Javier died. Is there still reason for the

Court to hear the matter and to resolve it? What is
the function of the SC?
S: The Court said that they should resolve it so that
there will be proper pronouncement of merit.
G: What else? What is the character of the SC? What
is its nature?
S: There will be guidelines for the subsequent issues
of the same character.
G: The Court emphasized its role in the scheme of
things. It is not only the highest arbiter of legal
questions but also the conscience of the government.
The citizen comes to the SC in quest of law but it also
give him justice, even if the two are not always the
same. But there are times when although the
disputed had disappeared, just like this case na
namatay si Javier, there is no need to declare the
winner but it can nevertheless—that matter cries out
to be resolved just like this case. Justice demands
therefore that the SC must act not only for the
vindication of the outraged right though gone but also
for the guidance of and as a restraint upon the future.
So what kind of function is this? Checking, legitimating
or symbolic? Symbolic. Because admitted here that
the case has become moot and academic because of
the abolition of the Batasang Pambansa,
disappearance of the office in issue as well as the
death of one of the parties. Still the Court proceeded
to hear or to resolve the matter if only to give justice
to Javier. And the Court indeed—did it affirm the
decision of the COMELEC? Is the COMELEC correct
when it declared Pacificador as the winner?
S: No.
G: So the COMELEC was not sustained by the SC
because the matter should have been heard by the
COMELEC en banc because this involves the members
of the Batasang Pambansa. And under the laws
involved here, the matters, all contests involving the
members of the Batasang Pambansa should come
under the jurisdiction of the COMELEC en banc and as
we said earlier this case was decided by the COMELEC
2nd division.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 60
“Even if they cannot anymore declare, let it be spread
in the records of this case were it not for the
supervening events that have legally rendered moot
and academic, this petition would have been granted
and the decision of the COMELEC set aside as being
violative of the Constitution.” So even if this no longer
had a practical purpose, the Court still resolved it for
future guidance particularly on the matter of
jurisdiction.
ABS-CBN v. COMELEC (2000)
G: What is an exit survey?
S: It is a species of electoral survey conducted by
qualified individuals or groups of individuals for the
purpose of determining the probable result of an
election by confidentially asking randomly selected
voters whom they have voted for, immediately after
they have officially cast their ballots.
G: Why was this exit survey at issue in this case? What
did the COMELEC do in this exit survey?
S: There was this restraining order to stop ABS-CBN
from conducting exit surveys.
G: Who issued this restraining order?
S: The COMELEC
G: Yes, the COMELEC the issued a resolution which
approved the issuance a restraining order to stop ABS-
CBN or other media groups from conducting exit
surveys. And then, ABS-CBN went to the SC
challenging the action of the COMELEC and while the
case while pending with the SC, what happened to the
elections?
S: It was done.
G: Yes, the elections lapsed. Therefore it is argued
now by the COMELEC that the case is moot. Is the
issue here moot?
S: Not totally moot, sir. Because it is still subject to
repitition.
G: Why is it subject to repetition?
S: Because the elections are being done periodically.

G: This matter should not be dismissed on the ground
mootness because in the next elections pwede na pud
mag conduct ug exit survey. So in order to finally
settle this issue, the Court said that “we should
resolve this matter even if the 1998 elections has
already passed.” Also, the exception to the mootness
doctrine. So the Court still, even if the elections here
has already lapsed and happened, the case or the
matter is still capable of repetition.
Central Bank Employees v. BSP (2004)
G: What happened here?
S: In this case there was a Housh Bill 1,2, and 3,
seeking to exempt—
G: Let's move forward, nahimo na ug law ang bill.
What was the issue here?
S: The issue in this case—the question posed by the
SC on a provision of law which was initially valid and
subsequently became unconstitutional?
G: A valid provision of law, later on, can become
unconstitutional because?
S: Because its continued operation is discriminatory
against the BSP employees.
G: It would violate the equal protection of the law
clause. So here we have this law, RA 7653, this is the
new Central Bank Act, and this law provides authority
on the part of the BSP to, what? What it can do,
particularly Art. 2, Section 15, Paragraph C?
S: The said paragraph is unreasonable and oppressive
on the BSP employees because the Court said the
Congress—
G: No, no, no (cutting off the answer) what did the
provision do? Particularly on the compensation of the
employees of the BSP.
This provision that is being challenged divides the
employees that are salary grade (SG) 19 and below
and those above SG 19. If you fall to the former, you
are governed by the RA 6758, this Compensation Act,
meaning there are limitations we follow the general
rule on the matter. Otherwise, you are not covered by
this Salary Standardization Act. Therefore,kung unsa
ang benefit scheme that was adopted by BSP would
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 61
be applicable to you but for those SG 19 and below,
you are not covered by that. Lesser imong benefits,
among others, because the law that will govern is RA
6758. And that was being challenged by some of the
employees of the Central Bank. In fact, majority or
many of them, because it is? What does it do?
As you said earlier, because? If you create an
unreasonable classification between two seemingly
similar sets of people, you divide them and not treat
them equally, it’s a violation of equal protection
clause. Because of that, the specific provision is
unconstitutional. Now, one of the arguments here is
that this should not be before the SC, this should be
presented before Congress? This should require an
amendment not judicial legislation. Is that correct?
S: It should be heard in the SC.
G: Why? It is because involves an allegation that there
is a denial of a fundamental right which is the equal
protection. Since there is a violation of a
constitutional right, then the SC can resolve this
matter because it determines if there is such
violation. And the main function of the courts of
justice, more than the present governmental
structure is to settle the issues presented before it. It
does not have authority or the discretion to decline
passing upon an issue which is justiciable. But it is in
fact obliged to resolve it as part of their oath; as
justices of highest court of the land. The duty of the
SC is to determine whether or not another branch of
the government has kept within its constitutional
limits, among its other duties. Here, we have an act by
Congress which is now being challenged for being
violative of the Constitution as it disregards the equal
protection clause. In other words, the SC can resolve
this case. Is there a violation of the equal protection
clause here? Yes. Why would you distinguish between
these two?
GENERAL CONSIDERATIONS: ALL COURTS CAN
EXERCISE JUDICIAL REVIEW
Can all courts exercise judicial review? Should it
always be the SC that hears the constitutional issue if
there is a challenge on a law or act to be

unconstitutional? Is it only the SC that can hear the
matter?
S: No.
G: Why? What is the basis of your answer? In other
words lower courts can declare laws or acts
unconstitutional. Why?
S: It is provided in Article VIII.
G: What particular provision? Particularly what
power?
1987 Constitution, Article VIII, Section 5. The
Supreme Court shall have the following powers:
xxx
2. Review, revise, reverse, modify, or affirm on
appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and orders of
lower courts in:
a. All cases in which the constitutionality or
validity of any treaty, international or
executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or
regulation is in question.
G: In other words, the lower courts already made a
decision insofar as the constitutionality of this matter
is concerned and the SC can review that. This means
that, in the first place, the lower courts can rule on
those matters involving the constitutionality of these
items which can be review by the SC. And this is the
basis why the lower courts have the power to rule. So
it is not only limited to the SC but also to the lower
courts pursuant to Article VIII, Section 5, Paragraph 2,
Subparagraph A.
DAY 08 – JUNE06, 2018
The three-fold functions of judicial review: checking,
legitimating, and symbolic.
GENERAL CONSIDERATIONS: ALL COURTS CAN
EXERCISE JUDICIAL REVIEW, CONT’D
Now, we proceed to the topic of which entity can
render or rule that an act or law is unconstitutional. Is
it only the SC? No, even lower courts can declare laws
to be unconstitutional subject to the review power of
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 62
the SC. But of course, it’s not something that the
courts do as a matter of courts, it exercise its power
with restraints. It threads lightly on this issues
becausethe matters involves act of co-equal
department.
Ynot v. IAC (1987)
Concerning Executive Order No. 626-A on the
prohibition of the transportation of the carabaos from
one province to another. What is the effect if you
violate this EO 626? The carabao would be
confiscated, there is no hearing, etc. That’s what
happened here. The owner of the carabao
purportedly violated this EO 626, it was confiscated
from him. He went to Court to recover the carabao
and he also put as an issue before the Court the
constitutionality of this EO 626 which, during the time
of the force and effect of law, he argued that it
violates the right to due process. The Court however,
lower court, declined to rule on the issue of the
constitutionality of this EO because according to him,
the court lacks authority and also the EO here is
presumed to be valid.
Can lower courts rule on the constitutionality of a
statute?
Of course, while lower courts should observe a
becoming modesty in examining constitutional
questions—precisely because you are a lower court
and you do not just entertain constitutional questions
right then and there—you are nonetheless
empowered. You have the power to do so, they are
not nonetheless not prevented from resolving the
same whenever warranted, subject only to the review
by the Supreme Court.
Remember the provision in Article 8, Section 5
subparagraph 2(a) where the Supreme Court can
review final orders and resolutions of lower courts
involving the constitutionality of: katong gipang
enumerate under that provision. So meaning, there
must have been a prior ruling by the lower court which
is subject to review by the Supreme Court. In other
words, the lower court ruled at the outset on the issue.
What about the presumption of the constitutionality
of laws?

Here, EO 626, the Court said that this presumption is
rebuttable. It is not conclusive and therefore proof can
be presented that this law is unconstitutional. So, the
Court here should not have reneged from, and should
have exercise, its duty to rule on the issues presented
before it.
Is the issuance unconstitutional?
The court said that it is. It is an Invalid exercise of
police power because the method employed
concerning the carabao is not reasonably necessary to
achieve the purpose of the law. Plus, it deprives the
owner his right to due process because his property
was automatically confiscated. He is, right then and
there, immediately condemned and punished.
Brokenshire v. Minister (1990)
The case here [was] filed by the employees of
Brokenshire. Nagfile sila ug labor complaint against
the Hospital. It was lodged before the Regional Office
of the Ministry of Labor in Region, XI Davao City,
because according to this employees, Brokenshire did
not comply with the Wage Order No. 5. Apparently
they are being underpaid their wages. And so, after
due hearing, the Regional Director of this Ministry,
Region XI, rendered a decision in favor of the
employees and this judgment became final and
executory. So, the hospital is supposed to pay these
employees. After making the payment, the hospital
failed to continue to comply again with Wage Order
No. 5 and also with the new Wage Order No. 6
prompting the employees to file another case again
against Brokenshire. Brokenshire alleges that these
Wage Order No. 5 and 6 should be declared by NLRC,
this tribunal kung asa siya no, at this time naa siya sa
Regional Office, but the NLRC daw has the power to
rule on the constitutionality of these Wage Orders.
Can the NLRC do that? Does it have the power to rule
on the constitutionality of these Wage Orders?
NO, it is only the courts. The Supreme Court is vested
by the Constitution with the power to ultimately
declare a law unconstitutional without the declaration
that law becomes operative.
Here, the Regional Director of the NLRC is without any
authority to declare any order or law unconstitutional
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 63
because he belongs to what Department? What
Department is the NLRC? Executive and not the
Judiciary. His duty therefore as Regional Director, as
well as NLRC, his duty is to enforce the law which
stands valid. He cannot, as enforcer of the law, say
that I will not execute this law because it is
unconstitutional. He has no power to do that because
only the courts can settle that issue. So, the wage
orders here are nonetheless declared by the SC to be
valid and not unconstitutional.
Ongsuco v. Malones (2009)
Courts, again, can declare not only laws or acts of the
Executive, but also ordinances and they can declare
these ordinances either illegal—because the
ordinance cannot go beyond the law—or
unconstitutional. That’s what happened here.
There was this Municipal Ordinance No. 98-01 issued
by the Sangguniang Bayan of Maasin. Among others,
it raised or imposed goodwill fees and of course, the
people who are affected by the imposition of these
fees challenge the legality of this issuance—Municipal
Ordinance—because according to them this was not
subjected to a public hearing which is inconsistent
with the provisions of the Local Government Code
(LGC).
Here, we have an ordinance which is challenged to be
illegal because it is not consistent with the LGC. It did
not go through with the prescribed procedure before
the ordinance can be given any effect. There was this
public hearing requirement, what was mandatory,
under the LGC precisely because it involves the
imposition of fees. They were all dismissed however
when the case went to the court—dismissed by the
RTC.
Can this issue be resolved by the trial courts?
Of course. This involves, undoubtedly, a pure question
of law which is within the competence and jurisdiction
of RTC to resolve. The court cited here the provision
[Paragraph 2(a) of Section 5, Article VIII of the
Constitution, expressly establishes the appellate
jurisdiction of this Court, and impliedly recognizes the
original jurisdiction of lower courts over cases

involving the constitutionality or validity of an
ordinance.]
But, here, we are not talking about the
constitutionality of the ordinance but its consistency of
with the LGC. In the same provision, the courts can
rule on the validity of, among others, ordinances.
Courts have the power to rule whether or not this
ordinance is illegal, valid or otherwise.
As to the substance, the Court said that this Municipal
Ordinance is null and void because it did not undergo
the required public hearing requirement under the
LGC. It was not cured even if there was a subsequent
hearing on the same ordinance because at the outset
it was already void.
What we have to remember is that, again, courts have
the power, even lower courts, to declare laws [and]
acts unconstitutional.
GENERAL CONSIDERATIONS: EFFECTS OF
DECLARATION OF UNCONSTITUTIONALITY
What are the effects, now that you have an
unconstitutional act or law? What happens to that
law? What happens to the acts done upon reliance of
the validity of that law? What happens to the acts
that occur after that law has been declared to be
unconstitutional?
Two SCHOOLS OF THOUGHT in so far as the effects of
the unconstitutional law is concerned:
1. Orthodox View or Old View
2. New View or the Operative Fact Doctrine
Orthodox/Old View (Art. 7, Civil Code)
“Laws are repealed only by subsequent ones x x x
When courts declare a law to be inconsistent to
the Constitution (meaning unconstitutional), the
former shall be void and the latter shall govern.”
So the law is VOID—it produces supposedly no effect.
It is as if the contract, for example: declared to be null
and void, it was not existent in the first place.
Is that principle applicable to laws that are declared to
be unconstitutional? Wala ba jud effect ang law?
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 64
Even if it was declared in the future, in the meantime
nag rely ta sa law, later on naging unconstitutional
siya, you who relied on the validity of this law, are you
not protected at the time you relied on good faith on
this law before it was declared unconstitutional?
GENERAL CONSIDERATIONS: OPERATIVE FACT
DOCTRINE
Serrano de Agbayani v. PNB (1971)—Landmark
Case
Serrano loaned from PNB and this loan was secured
by a mortgage, so naa siya’y property. It happened
thatwala niya nabayran ang iyahang property for a
long time. So the bank, using his security, gi-foreclose,
sold the property to pay for the loan. Apparently it
was the bank who won in the foreclosure
proceedings, so naadto sa bank ang property.
Now nagfile ug case si Serrano because according to
him, the mortgage sought to be foreclose had already
long prescribed. What do you mean by “prescribed”?
Nag expire na siya. You can no longer effect or cause
the foreclosure of this mortgage because you no
longer have that right, that right having prescribed or
expired. Under the Civil Code, a mortgage action
prescribes after 10 years. That is the argument of the
owner of the property here, in fact she was able to
secure an injunction from this court made permanent
by the same court because according to the Court,
“Prescribed na PNB, you were too late before you
instituted the mortgage proceedings.”
The case went to the SC.On the other hand, the
argument of PNB was that it has not prescribed
because there was a time when Executive Order No.
32 was issued, and during that time, gi-suspend ang
power to—orit extended the period of moratorium.
What does that mean? When there was this period of
time when EO 32 was valid, that you could not
foreclose mortgages, you could not collect your debts.
So kani nga time, should have been excluded in the
computation of the prescriptive period. E.g., it was
valid for 8 years or some number of years, then that
should have been excluded from the computation of
the prescriptive period.

The lower court, however, did not believe that be the
case because according to the lower court, that EO 32
was declared to be unconstitutional and so, that EO
32 has no effect whatsoever. Therefore, you do not
consider any effect arising from EO 32 because it had
been declared unconstitutional and therefore void.
So, prescribed—ruling of the trial court.
Is the Trial Court correct? Has the remedy of
foreclosure had prescribed?
The Court said NO.The period to foreclose the
mortgage was or the expiration of this--a pre-
consider, this EO 32—If we do not say that it has no
effect whatsoever, naa pay six days ang bank to
foreclose it. So karon maghinge na ang question
whether or not the bank may foreclose or not if we
give any effect to this EO 32 which was declared
unconstitutional in a case by the SC: Rutter v. Esteban.
If we give any effect to this, maka-foreclose ang bank.
If we do not give effect to this EO 32, prescribed na
ang right sa bank to foreclose.
Gitagaan ba effect?
The court said that YES, EO No. 32 had effects when it
was, prior to its unconstitutionality, it was effective.
The Court described here the orthodox view as well as
operative fact doctrine.
What is the ORTHODOX VIEW of an unconstitutional
act?
Here EO 32, declared unconstitutional in a separate
case, the plaintiff—owner of the property—says void
man diay ni, wala na, wala ning period. Walay benefit
na makuha ang bank sa period na ginahatag aning EO
32.
What is the effect under the orthodox view if a law is
declared unconstitutional?
An Unconstitutional Act or an Executive Order, etc.
suffering from unconstitutionality cannot be a source
of any legal rights or duties. It cannot justify any
official act taken under it and it becomes to all intent
and purposes a mere scrap of paper. That’s what
happens—no effect whatsoever.
What is the weakness however of this view?
The court said that this view is sometimes, well
sufficiently unrealistic because there are people who,
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 65
during that time—for example, there is this law that
allows you to marry your dog. Then in good faith, you
married your dog and later on declared
unconstitutional. So, what happens to your marriage?
That’s just an example. You relied in good faith in that
law, pwede ba i-take ang effect ana by using this
orthodox—the old view?
The Court said that you have to contend with the
reality that people during that time, they relied on
good faith that the law was valid. Wala man kay
foresight that in the future ma-unconstitutional ning
mga law. So dapat i-follow mo nimo siya. It does not
admit the doubt that prior to the declaration of nullity,
the challenged legislative act or executive act must
have been enforced and had to be complied with.
Therefore, parties had to act under this law and may
have done acts pursuant to it.
Here, the bank could not foreclose the mortgage
during the time that EO 32 was effective because dili
man siya allowed to do so. It would be unfair to
penalize the bank for not foreclosing the mortgage
during the period that EO 32 was valid precisely
because it was not allowed to do so.
Therefore, the Court laid down that it is not accepted
as a doctrine. That prior to its being nullified, the
existence of this law or act as a fact, it was an
operative fact. It operated as a fact—must be
reckoned with, must be recognized. So, this is where
the operative fact doctrine was born. The actual
existence of a statute prior to the determination of its
unconstitutionality is an operative fact that may have
consequences which cannot be ignored. The past
cannot always be erased by a new judicial declaration.
Since the Court recognized that this EO 32, even if that
was already unconstitutional, had effects. So allowed
gyapon ang bank because gi-consider tong period that
EO 32 was valid as an operative fact, giving the bank
the benefit of the period and gi-exclude tong period
from the computation of the prescriptive period.
Floresv.Drilon (1993)
Here we have the issue on the appointment of an
elective official as the chairman of this SBMA. We

have this law RA 7227 or “Bases Conversion and
Development Act of 1992”. Under this law, Gordon,
then Mayor of Olongapo, was appointed as the
Chairman and Chief Executive Officer of the SBMA
(Subic Bay Metropolitan Authority). He was appointed
and he executed his duties pursuant to his
appointment. Gi-recognize niya, he was an appointee
therefore kung unsa iyang trabaho under the law,
what he had to do, he had to do. Later on na
discovered na unconstitutional or illegal diay iyang
appointment. Why? Under the Constitution, Article IX-
B, Sec. 7:
"[n]o elective official (he is a mayor) shall be
eligible for appointment or designation in any
capacity to any public officer or position during his
tenure."
Since Gordon was a City Mayor of Olongapo at the
time he was appointed to the Chairmanship of SBMA,
his appointment therefore violates that provision in
the Constitution. Therefore, the appointment is
unconstitutional.
So, unsa mana? Ibalik ang iyang mga sweldo? Tanang
iyang acts i-reverse because of the orthodox view?
The Courts recognized here again that yes this
appointment is unconstitutional, it runs counter to
the provision of the Constitution proscribing elective
officials from holding office during their tenure.
Nonetheless, we have this operative fact doctrine. His
acts as the SBMA Chairman or official are not
necessarily all rendered null and void. He may be
considered as a de facto officer. At the time when he
relied on good faith that his appointment was valid,
then, kung unsa tong acts he committed prior to the
declaration of unconstitutionality of his appointment,
they are all valid under this operative fact doctrine. In
fact, he is considered as a de facto officer—an officer
who exercises his function under the colorable title
believing in good faith that he can exercise acts as
such officer. Ibalik ba niya iyang mga sweldo? No.
Aldovino v. Alunan (1994)
This doctrine of operative fact is not talismanic
incantation or magic. This doctrine only applies in
instances where there is a need to apply the same for
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 66
purposes of equity(dapat on equitable
considerations).
This involves several employees of the Department of
Tourism (DOT). There was an issuance, Executive
Order No. 120, which declared all the positions of the
DOT as vacant. Tangal tanan empleyado sa DOT from
their jobs. Many employees of course went to the
appropriate forum to question the validity of this
issuance. In separate cases before the SC, the court
declared that this issuance—nagtangal sa ilang
tanan—were all null and void. Therefore, when the
decision by the SC became final and executory, they
should have returned to their posts—since nawala
naman tong issuance—but they could not because
they were not informed of this decision.
Now, separate case napud filed here because they
want to recover their back wages. “Pay us because
null and void man diay tong issuance which cleared us
all from the office.”
It is the argument, however, of the State that we have
to apply the operative fact doctrine. At the time that
this issuance was issued and at the time it was
declared unconstitutional, it was valid. Therefore, kani
nga period wala moy sweldo because valid man siya
and you are not rendering any service, etc. So, apply
nato ang operative fact. Wala moy makuha from the
government because you did not work prior to the
declaration of unconstitutionality of this issuance.
Do we apply the doctrine operative fact in this case?
The Court did not apply the operative fact, it applied
the general rule that “an unconstitutional act is not a
law; it confers no rights; it imposes no duties; it
affords no protection; it creates no office; it is, in legal
contemplation, inoperative, as if it had not been
passed. It is therefore stricken from the statute books
and considered never to have existed at all. Not only
the parties but all persons are bound by the
declaration of unconstitutionality which means that
no one may thereafter invoke it nor may the courts be
permitted to apply it in subsequent cases. It is, in other
words, a total nullity.”
So since null and void man, do we apply this doctrine
of operative fact?

No, because this operative fact cannot be applied if it
results to injustice. We apply it if it results to justice
and equity.
The fact that the employees here were not able to
assume their duties is attributable to the continuing
refusal of the respondents here, the State, to take
them in. They were not even informed of the
nullification of their termination orders.
If there are no rights violated; there is no inequity that
would result, we apply the old view. If it would be
unfair to apply the operative fact doctrine, we apply
the old view or the unorthodox view. In this case, the
Court did not apply the operative fact doctrine
because it would be unfair to these employees. Had
they been informed that the orders have been
declared unconstitutional, then they could have
returned to their offices to assume their duties. It
would be inequitable to apply the operative fact
doctrine here because they could not retain their
salaries due to their illegal removal from their office.
Now we focus on the concept of operative fact
doctrine.
Hacienda Luisita v. PARC (2011)
There was this Executive Order No. 229 providing for
the machinations for the implementation of the
Comprehensive Agrarian Reform Program. This CARP
created the PARC or the Presidential Agrarian Reform
Council. It is the highest policy making body that
formulates all policies, rules, and regulations
necessary to implement the CARP. And this PARC,
under then Sec. Defensor-Santiago, issued
Resolution 89-12-2 which approved the stock
distribution plan consistent with the provisions of the
CARL (Comprehensive Agrarian Reform
approving the stock distribution plan of TADECO and
Hacienda Luisita Inc. PARC, however, revoked the
stock distribution plan under Resolution 89-12-2
pursuant to another Department of Agrarian Reform,
Administrative Order No. 10 (DAO 10). So because of
this, nawala si Resolution 89-12-2. It was revoked.
Do we recognized the effect of Resolution 89-12-2
prior to its nullification by the PARC?
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 67
Under the law, it is the PARC that has the power to
approve the stock distribution plans and it did so when
it issued Resolution 89-12-2 and it revoked it under
DAO 10. So, it has the power to do that.
The Court said that the issue here is unsa man ang
effect now that the stock distribution plan has become
ineffective because of this subsequent issuance. The
Court apply the application of the operative fact
doctrine. The revocation of the stock distribution plan
was challenge before the SC and it upheld the act of
the PARC to do so because it had the power under the
law. Of course, even if it was valid, the Court
recognized the time this stock distribution plan was
valid, parties would rely in good faith on the validity of
this Stock Distribution Plan and had in fact done acts
pursuant to that stock distribution plan.
Therefore, the actual existence of this act is, prior to
such determination of its nullity, is that operative fact,
and may have consequences which cannot be ignored.
We have here the revocation of a Resolution issued by
a body created by law, the PARC, and gina-apply nato
karun ang operative fact doctrine.
Is the Operative Fact Doctrine only applicable to laws
which are declared to be unconstitutional? Should it
be applied to the acts of the PARC when it issued
Resolution 89-12-2? Is the Operative Fact Doctrine
limited to laws?
The Court said that it is not limited to laws.
It applies to Executive acts such as in this case which
involves the approval by the PARC of this Stock
a Distribution Plan. So, operative fact doctrine can apply
to presidential issuances, executive acts. So it’s not
limited to laws.
Law)
In the motion for reconsideration for this case, the
Court upheld its ruling and emphasize that this
Operative Fact Doctrine is, in fact, not limited to
invalid or unconstitutional laws. It applies to executive
acts subsequently declared as invalid.
What is the difference?
Law is created by Congress while Executive Acts are
created by the executive to execute a law. Still, the

Operative Fact applies to both of them—laws and
executive acts.
What does the term executive act encompass?
It is broad enough to encompass decisions of
administrative bodies and agencies under the
Executive Department which are eventually revoked.
That is the scope of this executive act.
Examples:
Appointments declared to be unconstitutional or
illegal. Remember the case of Gordon,
unconstitutional ang appointment but still gi-
recognize ang effect and that appointment is not a
law but that is an executive act. You are appointed by
an appointing authority. So appointments that are
nullified are covered by the operative fact doctrine,
among other things.
Tan vs. Barrios involving a general order issued by the
President. Still that is an executive act which the court
applied the operative fact doctrine even after the
same was declared to be unconstitutional. Again, this
doctrine is not confined to statutes and rules and
regulations issued by the executive department that
are accorded the same status, it also applies to
executive acts. This doctrine however can only be
applied if there is a need to do so in the interest of
justice and equity.
Why is it that the operative fact doctrine can apply to
executive acts?
It’s because this executive acts, you cannot deny it, if
the President issues this issuances, they have the
force and effect of law. Having the force and effect of
law, you are oblige to comply with them. Therefore, in
the event na maging unconstitutional siya, dili ma-
erase ang fact that at the time that it was valid, you
have to comply with the provisions thereof.
COCOFED v. Republic (2012) – Recitation
Student: This involves the coco levy funds which the
republic, which were found out to be ill-gotten wealth
from President Marcos. There’s insinuation that those
were owned by the Government and they were just in
trust for farmers.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 68
Sir: Where was this case, to recover this coco levy
funds, filed? What court found that this was ill-gotten
wealth and therefore should be returned to the
public?
Student: Sandiganbayan.
Sir: Sandiganbayan is an anti-graft court, not part of
the Executive Department but part of the Judiciary. So
there was this case filed against the cronies of Marcos
and also Marcos to recover the properties that are ill-
gotten. The Sandiganbayan indeed made a ruling that,
among others, this block of San Miguel Corporation
shares of stock, totaling P33 million shares, are
declared owned by the government in trust of the
coconut farmers. COCOFED went to the SC challenging
this decision of the Sandiganbayan.
Sir: What did it raised, among others, as argument
which is related to our topic?
Student: Contended that the decision of the
Sandiganbayan violated the due process.
Sir: What about the operative fact doctrine? When did
it come in?
Student: They said sir that there would be inequity. It
was not applied.
Sir: How is the operative fact doctrine applicable in
this case? When did the operative apply/ pop up?
Student: Public funds sir, which were supposedly
given utmost safeguard, were haphazardly distributed
to private individuals.
Sir: Pursuant to what? Or the authority to distribute
this shares to people who are not qualified to own
this shares? What authority? What law—that was
declared unconstitutional?
Student: PD 755.
Sir: What does this PD 755 allow or do?
Anyway, this law allowed for the distribution of this
stocks to entities and persons who are not supposed
to be recipients of this funds, dapat coco farmers but
naay mga middlemen who are able to take hold of this
shares and are able to distribute, sell this to other

individuals pursuant to PD 755. This Presidential
Decree was declared to be unconstitutional.
So now it is declared to be unconstitutional, what is
the effect? Diba nag gamit ka ani nga law so that
mabaligya nimo tong mga shares that were not
supposed to be yours. So, ikaw nagpurchase ka ato
and now nagdeclare na unconstitutional ang law,
meaning wala na basis ang paghold nimo ug
properties.
What is the effect? COCOFED wants to apply the
doctrine of operative fact because? Why, gusto niya
na at the time that… what?
Anyway, the COCOFED wanted the application of
operative fact doctrine so that at the time daw that
this PD 755 was valid, it had effects. Therefore, those
people who relied on good faith on this law—buying,
selling of shares of stock—should be protected at the
time prior to the declaration of unconstitutionality of
PD 755. So, operative fact doctrine come in. This issue
went to the SC as the Sandiganbayan did not apply
the operative fact doctrine.
Does the Operative Fact Doctrine apply?
No, it did not apply the doctrine because to do so
would result to inequity. The Court enumerated
several reasons that would happen if we give effect to
the law using the operative fact doctrine. Again, can
apply to cases as long as it would result to equity and
justice.
It will not result in equity and justice in this case
because the claimants here do not have any legal right
to the UCPB shares distributed to them. They were not
the farmers contemplated by the law to be
beneficiaries of this funds. If you allow the operative
fact doctrine, you would be sanctioning the illegal
practice, magclaim ng ownership ang mga people who
are not qualified to be holders of this shares.
Therefore, to grant all the UCPB shares to the
claimants here would be iniquitous and prejudicial to
the remaining 4.6 million farmers who have not
received any UCPB shares when in fact they were the
ones who made the payments to the fund but they did
not receive any receipts or were not able to register
their receipts.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 69
Even if this law was declared unconstitutional, it
cannot be given operative fact. This unauthorized
grant given to the claimants constitutes an illegal
deprivation of property without due process of law to
those who are supposed to receive these shares.
Again, it would result to inequity and injustice and
that is why the Court applied the orthodox view. It
would be inappropriate to apply the operative fact
doctrine because this involves public funds which were
carelessly distributed to private individuals based on
statutory provisions that are found to be
unconstitutional. Plus, the recipients of these shares
may not actually the intended beneficiaries of the
benefit if we apply the operative fact doctrine.
Commissioner of Internal Revenue (CIR) v. San
Roque (2013)
We have the question of whether or not an
Administrative practice, before it became formally
recognized by the Executive or before it became an
executive act, can it be recognized after it has been
declared as unconstitutional? Does the operative fact
apply to administrative practices?
It started in the issuance of this BIR Ruling No. DA-
489-03. The issuance of BIR Ruling No. DA-489-03 on
10 December 2003 pwede ka maka-ask administrative
claim for a refund for VAT before the CIR. You can
claim for a refund because you paid more input VAT
than output VAT. Pwede ka maka-ask for a refund.
You have a specific or limited period by which you can
present that claim, 120 days, before the CIR. The CIR
has also a period of time by which he/she should act
on your claim and that is the 120-day period.
If dili siya mag act within that period, what should you
do? What if mag-act siya and i-negate niya imo claim
or i-disallow niya, what would you do? The practice
before, as sanctioned by this BIR Ruling No. DA-489-
03, was that at the time na magfile ka ug imohang
administrative claim, you could, at the same time, file
a judicial claim before the Court of Tax Appeal. You
can file these claims simultaneously as sanctioned by
this BIR Ruling.

However, this BIR Ruling was nullified or declared to
be unconstitutional by the SC in CIR vs. San Roque.
Therefore, the effect was: the 120-day period, you
have to exhaust that, humanon sa nimo and then later
on dira naka maka-file ug judicial claim. Dili pwede
siya simultaneous. Or if during the 120-day period, gi-
deny na ang imong claim, then you can go to the
judicial round. You cannot, however, simultaneously
institute these claims while the 120-day period has
not yet lapse or the CIR has not acted on the claim.
Prior to this DA-489-03, issued in 2003, naga prevail
na diay siya nga practice by the taxpayers that they
can file a claim administratively and also judicially at
the same time. So this is the issue here. That was
considered to be an administrative practice.
Now that the Court has declared this practice, as
formalized by this DA-489-03, to be unconstitutional,
what happens to the practice before na wala pa siya
nagging formal or recognized by the BIR? Can we
apply the operative fact doctrine to that?
The Court in this case applied the operative fact
doctrine to the period na operative tong BIR Ruling—
katong nagging formal siya tong 2003—but the Court
did not apply the operative fact doctrine during the
time wala pa siya nagging formal issuance—katong
administrative practice pa lang siya. That is not
covered by the operative fact doctrine.
For the operative fact doctrine to apply, there must be
a legislative or executive measure—meaning there is a
law or executive issuance—which is invalidated by the
court. In this case, what was invalidated was DA-489-
03 as well as katong continuing practice prior to this
issuance.
Is this administrative practice, prior to this BIR Ruling
No. DA-489-03, covered ba siya ng saklaw ng
executive act (as we discussed earlier, executive acts
are covered by the operative fact doctrine)?
NO. This is not an executive act. It was not formalized,
not formally recognized by the BIR until 2003. So, prior
to that it was still a practice that would not be
affected by this operative fact doctrine. An
administrative practice is neither a law nor an
executive issuance.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 70
The Tax Code and National Internal Revenue Code
(NIRC) also provides for this operative fact doctrine. It
is embedded in the tax code. The tax payers may rely
on the ruling issued by the Commissioner from the
time it is issued. So if there is this ruling, apply with
that. Pag wala siya ruling, what do you comply,
meaning wala kay formal recognition on that practice.
So dili ka maka-appply; you do not apply the operative
fact doctrine until that practice had been
formalized/recognized by the Executive.
There must be a ruling issued by the Commissioner is
relied upon by the tax payer in good faith. Here, there
was none because it was not formally recognized until
the BIR’s ruling in 2003 under DA-489-03.
DAY 09 – JULY 09, 2018
Transcribed by: dela Cerna
Previous decision on this case, they are now bound to
prove that they did not act with bad faith, so the
Court said that it did not remove that decision. Good
faith still exists. And the Court emphasized that if this
doctrine would result to inequity and injustice, it will
not apply. It will not be applied.
CIR v. Puregold (2015)
CIR vs. Puregold (2015), here we have Puregold which
is an entity engaged in the sale of consumer goods in
various areas of the Philippines and it also sold goods
in the Clark Special Economic Zone [CSEZ]. Now during
the time, there was a specific period, under Executive
Order (EO) No. 80, where it was extended in tax
exemption from imports. The certificates given to
Puregold, these exemption certificates, were issued
pursuant to EO 80 which extended to these
enterprises operating within the CSEZ all the
incentives granted to enterprises within the Subic
Special Economic Zone, same benefits, among others,
except tax exemptions. However, in 2005, this EO 80
was annulled by the Supreme Court and this had the
effect of withdrawing the preferential tax treatments
enjoyed by businesses within the CSEZ including
Puregold. Because of this ruling, now the BIR is (?) to
make an assessment of the taxes importations not on
the date that the decision removing this, katong July

2005 where EO 80 was annulled, but including the
period prior to that. The assessment ranged from
January 1998 to May 2004. In other words, the BIR did
not recognize that this EO 80 was an Operative Fact.
Ni retroact ang iyang assessment. And so, how much
was the tax liability? 2.7 billion. This caused Puregold
to protest this assessment and in the meantime a law
was passed granting tax amnesty to businesses
affected by the ruling of the Court katong pagtanggal
sa EO 80 which Puregold availed of. What is a tax
amnesty? A pardon or the intentional overlooking by
the State of its authority to impose penalties, just pay
this amount of tax, you do not pay the 2.7 billion but
this amount lang pursuant to this tax amnesty. Still,
the assessment of the BIR remained. The CIR, the
Commissioner was (?) in its assessment of Puregold
ranging from 1998 to 2004 and the case reached the
Supreme Court, the Court said that you apply the
Operative Fact Doctrine CIR, you recognize that EO 80
prior to its nullity, existed and within that period,
Puregold here enjoyed preferential tax treatment.
Again, this calls for the application of the operative
fact doctrine in this case. So basically, that’s that.
Anyway, we’re done with the operative fact doctrine.
Now we go to another concept in Constitutional Law
and that is what is the difference between a political
question and a justiciable question? Before, this
political question doctrine was used as a defense by a
party in order to have a case dismissed. Why? What is
a political question anyway? Political question is a
question that does not involve justiciable rights, no
violation of rights, no enforcement of legal duties but
it involves wisdom. Political questions involve 1) acts
which are given to the sole discretion of a specific
department whether it is the executive or legislative,
sole discretion is given to these departments, a
question on that exercise of discretion mainly concern
political in character; 2) questions which can only be
resolved by presenting the same to the citizenry in the
exercise of their sovereign powers. So firstly, the
Court defines political questions as questions under
which that the Constitution are to be decided by the
people in their sovereign capacity that’s number one,
unsay example ana? Katong determination of whether
or not the regime administration (?) rule that time
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 71
was it a de facto government or was it a de jure
government? That is a question that was not resolved
by the Supreme Court because it held that that is a
political question. Only the people can answer that
question and indeed they answered in the affirmative
when they recognized the (?) government as
legitimate. Or it is also a political question if there is
full discretionary authority given by the Constitution
to the executive or legislative branch in the
government. This discretion can only be exercised by
this legislative or executive branch as presented or
given to the Constitution and it concerns the exercise
thereof as well as its wisdom and not legality. So that
is the distinction between the two. If there is a
political question, dismissed na siya by the Court as a
rule. What about a justiciable question? Meaning
there is an issue before the court which can be
resolved by the court, there is violation of rights,
there is a non-observance of obligations or duties,
there is an interpretation of the Constitution, these
questions are justiciable. There is no need for the
people in their sovereign capacity to rule on these
questions because courts can do so.
Oposa v. Factoran (1993)
Remember this case which will be repeated time and
time again. Remember the concept of Inter-
generational Responsibility well in this case, this is
what gave birth to that. What is up with this case?
There is a complaint filed by Oposa et al. here,
according to them it is a class suit representing all the
citizens of the Republic of the Philippines for the full
benefit, use and enjoyment of the natural resources.
They also represent the minors in this case, they are
not yet capacitated. Even if they are minors, they
claimed to have standing and number two they also
represent generations yet unborn so inter-
generational responsibility. What was their issue?
They went to trial court to sue the DENR. They want
to (1) Cancel all existing timber license agreements in
the country; (2) Cease and desist from receiving,
accepting, processing, renewing or approving new
timber license agreements because inimical daw to
our country, that is their case. Now one of the
defenses raised by the state against the petition is

that it presents a political question therefore beyond
the power of the courts to rule upon. And the trial
court agreed with that position and dismissed the
case. So the case went to the Supreme Court, does
this matter present a justiciable or a political
question? The Court said this case does not present a
political question. Why? What is involved here is an
enforcement of a right. Rights under our laws, rights
under the Constitution to a balanced and healthful
ecology vis-a-vis policies already formulated and
expressed in legislation. Is there a violation of a
Constitutional right? Is there a violation of a statutory
right? That is what is going to be determined in this
case. Those questions do not fall under the political
question category, so the Court said there is no
political question here, wrong ang trial court. Take
note of the discourse here, of the Supreme Court
insofar as the invocation of this political question
defense. Is it as strong as before? The Court had time
to discuss that this defense has been tempered
because of the expanded power of the Supreme
Court, expanded judicial review powers under Article
8 Section 1. The first sentence provides for the duty of
the courts to settle actual controversies involving legal
rights which are legally demandable, but it is
expanded by adding the second phrase and courts can
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. So now the courts
have the power even to rule on the validity of the
exercise of discretion of this person, if it is exercised
with grave abuse. Mao na siya expanded na siya. And
therefore, the Court quoting Associate Justice Cruz,
this second power broadens the judicial power to
enable the courts of justice to review what was before
forbidden territory, which involves the discretion of
the political departments of the government. With
this new provision, the power to rule upon even the
wisdom of the decisions of the executive and the
legislature and to declare their acts to be
unconstitutional because they are tainted with grave
abuse of discretion has been vested in the courts. So,
this political question defense has been weakened
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 72
because of the expansion of the powers of judicial
review by the courts under the 1987 Constitution.
Velarde v. SJS (2004)
In Velarde vs. SJS, there’s no political question here
but more on the emphasis on what a justiciable
controversy is. Remember the 4 requisites before the
courts can tackle question depending whether or not
the same is the act involved is unconstitutional or
otherwise. Remember one of which is there must be
an actual case which is right for adjudication. Here in
Velarde vs. SJS, there’s a Petition for Declaratory
Relief filed before the trial court against religious
leaders because they sought the separation of the
church and state. They claimed under this petition
meaning wala pay nahitabo na act gyud because they
want to declare these acts to be invalid. What were
the acts being done by these religious leaders? They
were endorsing candidates for elective office and also
required their members to vote for a specific
candidate. So they would want the Court to stop that
from happening. Wala pa siya nahitabo, it was not yet
happening, but they want a ruling to stop that. One of
the defenses raised by these religious leaders is that
this is it presents a justiciable issue what is being
violated here? Are we doing anything? In order to
resolve that, the Court did define what a justiciable
controversy is in the first place. A justiciable
controversy refers to an existing case or controversy
that is appropriate or ripe for judicial determination,
not one that is conjectural or merely anticipatory. And
the petition filed in the trial court here fell short of
this test. It was merely a hypothetical question
because none of the acts were proven to have been
committed. The petition before the trial court alleged
nothing but speculations. This SJS merely speculated
and anticipated the impact meaning wala niya na
prove that as religious leaders that Velarde et al.,
Villanueva, Cardinal Sin had endorsed or threatened
to endorse a candidate or candidates for elective
office, and it does not happen and therefore these
premises, these allegations remain to be highly
speculative and theoretical therefore there is no
reason for the courts to exercise the power of judicial
review considering that there is no justiciable issue

before here. There has to be, before the court can
exercise its power of judicial review, at least katong
first phrase, there has to be an actual controversy
involving rights that are legally demandable and
enforceable. Here, wala.
Vinuya v. Romulo (2010)
As I said earlier, political question defense or doctrine
has been tempered but has it been removed?
Altogether totally from our jurisdiction? Wala na ba
gyud ni siya can you not invoke this anymore? Here
we have the case of Vinuya vs. Romulo involving the
exercise, the discretion of the executive to present a
claim by these comfort women who suffered
injustices abuses from the Japanese military during
the time of war. They want to be compensated for
damages and they want their claims to be presented
by through the executive department before Japan.
So, these women are members of the Malaya Lolas,
they wanted to be given compensation because they
were victims of rape by the Japanese military forces
during the second world war. They went to the
executive department particularly the DOJ, the DFA
and the Solicitor General to assist them in the filing of
their claims against the Japanese officials. However
the executive did not favorably act, declined to
endorse and present the claim before Japan. Why?
What was their reason? Because it would be inimical
daw to our relations with Japan if we present this
claim before this country also the comfort women
here have been fully compensated by Japan’s
compliance with a peace treaty between our country
and Japan so therefore there is no need na to present
their claim. And so the case went to the Supreme
Court arguing these Malaya Lolas argued that the
Executive department, DOJ, DFA and OSG gravely
abused its discretion when they did not favorably act
or declined to act on their complaint. Was there a
grave abuse of discretion? Or is this question even
justiciable, is this political in character? Now, before
going to the meat of the discussion the Court again
discussed what a political question is. When is a
question political in character? So citing US
jurisprudence here naay mga instances where a
question presented before the court appear to be a
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 73
political question, there is a constitutional
commitment of the issue to a coordinate political
department so there is this responsibility or obligation
which the Constitution tasks to a specific department
which only or a lack of judicially discoverable and
manageable standards for resolving the case or
question or it is impossible to decide on it without an
initial policy determination of a kind clearly for non-
judicial discretion, etc. So there’s an enumeration
here of what a political question is. In our jurisdiction,
the Court has synthesized it to “questions which,
under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated
to the legislative or executive branch of the
government.” What is an example of a case which
presents a political question? Questions which involve
foreign relations as in this case. The conduct of the
foreign relations is committed by the Constitution to
the executive and legislative--'the political'--
departments of the government, and the propriety of
what may be done in the exercise of their political
power is not subject to judicial inquiry or decision as a
general rule. That is the general rule. Now what is the
exception? The rule is not absolute. Not all cases
implicating foreign relations present political
questions because courts had the power to construe
or invalidate treaties and executive agreements. So
when matters involve these treaties and executive
agreements, they are beyond this political question
doctrine. They can be resolved by the courts. So the
rule is not absolute. Now in this case, is the question
of whether or not the government should espouse
claims of our nationals against a foreign national a
political question? The Court said that it is. It is a
foreign relations matter the authority for which is
committed by our Constitution not to the courts but
to the political branches, particularly the executive.
And since here, the executive department to the DOJ,
DFA and Sol Gen had already decided that it is to the
best interest of the country to waive all claims against
Japan. The wisdom of such decision is not for our
courts to question. This case is controversial. This
plagiarism issue. Anyway. So the Court here rejected
the petition because it presents a political question.

The exercise of discretion is solely lodged before the
executive and legislative department that an inquiry
on the exercise thereof would result to the
examination of policy. Now this is a recognition
therefore that it is not within the power or
competence of the judiciary to determine the wisdom
of these acts. The Court recognizes the conduct of
foreign relations full of complexities and
consequences. And who is the person with the most
power or information to make decisions vis-à-vis
insofar as foreign relations are concerned? It is our
President, the sole organ because he possesses the
most comprehensive and the most confidential
information about foreign countries for our
diplomatic and consular officials and in the exercise
thereof the President is traditionally given a wider
degree of discretion particularly the conduct of
foreign affairs so much so that the courts had to when
there’s a question involving this kind of conduct. For
the Court to overturn the executive department’s
determination would mean an assessment of the
foreign policy judgments by a coordinate political
branch to which authority to make that judgment has
been constitutionally committed. So political question
na siya.
Vinuya v. Romulo (2014)
In the MR of this case in 2014 resolution of the Court,
the petitioners Malaya Lolas and Vinuya et al. claim
for, among others, the reversal of the previous
decision and assert that an injunction on mandatory
injunction should be issued in their favor. What is the
difference between a mandatory injunction and
injunction? If we talk about an injunction lang, that is,
in its sense prohibitive injunction, you prohibit
someone from doing something whereas in
mandatory injunction, you direct someone to do
something. Here, they want a mandatory injunction,
compel the DFA, DOJ and Sol Gen to espouse their
claims before Japan. The Court said that before this
injunction can issue there has to be proof of a clear
and unmistakable right. You have to prove this right
but do these Malaya Lolas have the right to force the
executive department to present their claims before
Japan? This requires an exercise of discretion insofar
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 74
as the executive department is concerned and so that
requirement of an unmistakable right is already
missing. And again the Court emphasized here that
the Constitution has entrusted to the executive
department the conduct of foreign relations and again
that’s something the espousal of their claim therefore
is left to the executive’s exclusive determination and
judgment of the executive department to which the
wisdom of the exercise thereof cannot be reviewed by
the courts. And therefore it cannot direct the
executive department by injunction to conduct
foreign relations with Japan in a certain
Saguisag v. Ochoa (2016)
The EDCA Enhanced Defense Cooperation Agreement,
the question here is can this agreement, should it be
contained in a treaty or is it enough that it is in an
executive agreement because in this case, it was done
by the UN Executive Agreement. There was no
concurrence by the senate even if it involves foreign
military bases. So there is now a discord between the
act and what is required to the Constitution Art 17
Sec. 25 there are requisites if foreign military bases
are concerned, the entry thereof in our country. It is
not a political question because it involves violation,
purported violation, of the Constitution not being
faithful to what is required by the Constitution insofar
as foreign military bases is concerned. So there is a
comparison here. The act versus its compliance with
the Constitution, nothing to do with a political
question. Now the Court emphasized here that indeed
has the power of judicial review and this power has
been expanded in the 1987 Constitution. The purpose
of this power is it is a checks and balances mechanism
installed by the Constitution to check abuses done by
co equal branches. Why? Because it is only the
Supreme Court that has the power to interpret the
Constitution whether or not there has been departure
from its provisions. Here, the Court also discussed
judicial supremacy. Does this mean that the Supreme
Court is above the legislative and executive? The
Court said no. when we talk about judicial supremacy
it only means that the Supreme Court has the power
to interpret the Constitution whether or not there be
a violation thereof because above these 3

departments is the Constitution that is why what
makes it supreme is its power to interpret that, it
does not mean that the Supreme Court is supreme
from the executive and legislative because they are all
co-equal. Caution, therefore, must be exercised when
there is a question on the exercise of the powers of a
co-equal branch of the government. So going back to
our topic, does this case involve a political question?
Again, we said earlier, no. so we are done with
political questions versus justiciable questions.
Now we go to the provisions of the Constitution. We
start with Article 1 on the national territory of the
Philippines. What is the extent of the territory of the
Philippines? So if that is the question, then your
answer is Article 1. The national territory comprises
the Philippine archipelago, with all the islands and
waters embraced therein, and all other territories
over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial and
aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves, and other
submarine areas. The waters around, between, and
connecting the islands of the archipelago, regardless
of their breadth and dimensions, form part of the
internal waters of the Philippines. And that is called
the Archipelagic Doctrine. There is a recognition that
our country is an archipelago studded with islands,
but these islands do not represent separate states,
they are considered as one whole state. Therefore the
waters within these area form part of the territory.
They form part of the internal waters of the
Philippines. We learned that there are 4 elements of
the State: 1) Territory, 2) People, 3) Sovereignty as
well as 4) Government. Talking about here, territory,
this affixed portion at the surface of the earth, yuta,
inherited by the people of the state must be sufficient
enough to provide inhabitants with resources and the
power of these inhabitants to protect it.
Now before we go to the concept of territory, we
have to define what a state is.
Collectorv. Campos Rueda (1971)
We have here an issue on whether or not Tangier is
considered as a state. We have here a decedent, a
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 75
Filipino who died with properties in Tangier and
because it’s part of her estate, gi tax siya as a rule, by
our country. Now the administrator of the estate
claims na there is a reciprocity clause daw between
Tangier and the Philippines. That is if a resident of
Tangier dies and has properties in the Philippines, dili
taxed iyang properties. And also, if a resident of the
Philippines who has properties in Tangier dies, dili pud
itax iyang properties. So the assessment laid down by
the BIR here is a for not recognizing the reciprocity
rule. One of the defenses of the BIR is that Tangier is
not a state, it’s just a principality. Is it considered as a
state? Well for purposes of interpreting the provisions
of the National Revenue Tax Code, the Court said that
yes, it is a state. There are many definitions of a state:
it is a politically organized sovereign community
independent of outside control bound by penalties of
nationhood, legally supreme within its territory,
acting through a government functioning under a
regime of law, among other definitions. Take note of
that definition. The Court said that Tangier may be
considered as a state insofar as recognizing the
reciprocity of the provisions of the tax code are
concerned.
Nicolas v. Romulo (2009)
We have here the discussion on whether or not the
VFA is unconstitutional. It had been previously ruled
by the Court in Bayan vs Zamora but this issue came
up again in Nicolas vs Romulo. Why? This Daniel Smith
raped Nicolas some time in 2005. He was charged
accordingly. While the proceedings before the Court
were pending, he was under the custody of the US.
Eventually he was convicted so he was ordered to be
incarcerated in the Philippines, Makati City Jail.
However there were agreements done between our
country and the US, the Romulo-Kenney Agreement,
taking Smith out of our jurisdiction transferred to US
custody. Now it is being questioned kung tama ba
tong gihimo nila. And in the course of discussing these
issues the Court had the time to discuss Philippine
territory, the validity of the VFA, what is the extent of
the Philippine territory? It will be recalled that under
the Philippine Bill of 1902, remember the Philippines
was under the Spanish regime, gi colonize ta nila then

later on there was war between the US and Spain, the
latter lost so they ceded territory to the US. And so
kita, thinking we are already powerful, fought against
the US and lost. So, naging strong ang hold sa atoa sa
US for a particular time until movements for
independence from the US came about and
eventually the US ceded its sovereignty over us except
for several military bases and eventually that
reservation was also lifted upon the expiration of this
agreement. And now, wala najuy hold ang US sa atoa.
All of our territory belongs to us. So that is the extent
of our territory. There were areas previously
considered as Philippine territory, katong military
bases, Clark, Subic because these bases were covered
under RP -US Military Bases of 1947. Our country
agreed that for a particular time even if the US is
already out we will still remain control and after the
expiration of this agreement, there was already a
cession of these bases to our country. Subsequently,
the United States agreed to turn over these bases to
the Philippines; and with the expiration of the RP-US
Military Bases Agreement in 1991, the territory
covered by these bases were finally ceded to the
Philippines. Is the VFA valid? Yes. As already held in
Bayan vs Zamora, it was duly concurred in a treaty,
concurred in by the Philippine senate and therefore
binding. What provision of the VFA was sought to be
clarified here, because the VFA as we already learned
is valid and is therefore binding upon the 2 countries.
There’s a difference in the treatment, particularly in
the confinement or detention of military personnel
who commit illegal acts in our country? Under Article
5. During the pendency of judicial proceedings, pwede
na ang countries kung asa ma detain and upon
conviction there is a different rule and this rule was
violated by this Romulo-Kenney Agreement.
Saguisag v. Ochoa (2016)
On the EDCA where there is a history lesson which
would benefit us. There is battle of Manila Bay in 1898
between Spanish and Americans. Spain relinquished
its sovereignty before us in favor of the US upon its
surrender. 1899 there was this military
administration, that was fought against by our Filipino
men and lost that war, and so the Americans
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 76
strengthened their foothold in our country. Then,
there were talks of independence which lead to the
passage of Tydings-McDuffie Act. Just read all of this
history lesson. Now even if gi-cede na sa atoa atong
sovereignty, it did not stop the US and the Philippines
from entering into agreements insofar as military
bases are concerned: Military Bases Agreement (MBA)
of 1947, the Military Assistance Agreement of 1947,
and the Mutual Defense Treaty (MDT) of 1951. So
there is this recognition. Now nag expire na tong mga
agreements, we have now the full control. But in
order to safeguard the entry of military bases in our
country, the Constitution provides for a provision in
Sec 25 Art 17 before these foreigners can establish
military bases in the Philippines, there has to be a
treaty to that effect and it must duly be concurred in
by the senate. That is the safeguard. And reading the
Constitutional Commission’s discussion, deliberations
on the matter, they established 3 standards before
military bases can enter the Philippines: 1) there must
be independence from foreign control; 2) the
Philippines must retain sovereignty and jurisdiction
over its territory, even if nay mga military bases diha,
we retain our sovereignty and jurisdiction over these
parcels of land, what if there are structures built or
created by these military forces? We own those
structures. By withholding ownership of these areas
and retaining unrestricted access to them, the
government asserts sovereignty over its territory and;
3) there must be respect of national security and
territorial integrity. So dili na ta nila pwede kalit rag
sakop by any foreign force there.
Now let’s go back our discussion on the national
territory, which we defined in Article 1, the territory is
a fixed portion of the surface of the earth so meaning
di siya dagat, inhabited by the people of the state, so
there are people living there, it must be permanent
not temporary and indicated with precision because
jurisdiction is determined on the basis on such. It
must also be big enough to provide for the needs of
the population but must not be so extensive as to be
difficult to administer and defend from external
aggression. What are the components of a territory?
there must be a terrestrial domain, land or
dismembered which may be integrated or separated

or partly bounded by water; the maritime and fluvial
domains, bodies of water within the land mass
including internal waters, including the territorial sea
measured from the base line. Now in determining the
extent of the territorial sea, there has to be a
determination of what base lines are, because we are
an archipelago, daghan ug islands we don’t know
where to measure. So we establish first base lines by
with where we start our computation. Now there are
2 base line methods, the first is the normal base line
method by which territorial sea is drawn from the low
watermark of the coast to the breadth, following its
sinuosities and curvatures meaning when we
determine the territorial sea mag curve curve pud ang
atong uppermost points so the measurement would
be curved. The second method is the straight base
line method where straight lines are made to connect
appropriate points from the coast departing radically
from its general direction. So in this method naa ning
mga other points on the base outer points or
outermost points and then you connect them with
lines, not curves. Connect the dots. That’s the
difference between the two. What method is
followed by the Philippines? The Straight baseline
method. As we stated earlier the Archipelagic doctrine
recognizes that the internal waters are part of the
Philippine territory. This doctrine consoled the view
that all of the 7,100 islands should be considered as
one integrated whole instead of being fragmented
into separate units each with its own territorial sea. It
defined the internal waters of the archipelago
baseline should be drawn to connect appropriate
points of the outermost islands, without departing
radically from the general direction of the coast and
waters inside these base lines shall be considered
internal and thus not subject to entry reform unless
there is a consent of the local state. So now kabalo
nata that there is this baseline. The waters within the
baseline are considered as internal waters, the waters
outside may be considered as territorial sea,
contiguous zone and the exclusive economic zone.
When we talk about territorial sea, it’s 12 nautical
miles from the baseline. When we talk about
contiguous zone, it’s 24 nautical miles from the
baseline or 12 nautical miles from the territorial sea.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 77
While the EEZ is 200 nautical miles from the baseline.
What is so important in delineating all of these lines?
There are different acts that can be prohibited or can
be done within these zones. Our territorial sea is part
of the territory of this archipelagic state therefore you
cannot just invade there because it would constitute
acts of invasion among other things. Take note of
those zones, basig i-multiple choice na siya.
So terrestrial, fluvial and aerial domain. Those
comprise the territory. Territory can be acquired by
discovery and occupation, prescription, cession,
subjugation., accretion These are concepts in public
international law. Im just introducing to you some of
them in the course of our discussion. Territory is lost
through abandonment or dereliction, cession,
subjugation, prescription, erosion, revolution and
natural causes. So we’re done with territory.
Now let’s go to baselines. The method for
determining our baselines was established in RA 3046.
This law defines the baselines of the territorial sea of
the Philippines. It was promulgated in 1961 and is
provided for the straight baseline method because it
comprises the establishment growing of straight lines
joining appropriate points of the outermost islands of
the archipelago. So in this law, there are coordinates
there pointing na kani ang point, the outermost points
and then you connect the dots from those points in
order to determine what the internal waters are and
we would also learn the baseline upon which you
compute your territorial sea, contiguous zone and
EEZ. This law was amended in 1968 by RA 5446 and
further amended in RA 9522 sometime in March 10,
2009 to be consistent with the UNCLOS. There is a
recognition that we have sovereign jurisdiction over
the Scarborough Shoal under PD 1596. These islands,
by reason of their proximity, are vital to the security
and economic survival of the Philippines. Much of the
area is part of the continental margin of the
Philippines while they do not legally belong to any
state or nation but, by reason of history,
indispensable need, and effective occupation and
control, such areas must now deemed to belong and
subject to the sovereignty of the Philippines. So
they’re establishing that we have jurisdiction. We
 CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 78

have sovereignty over the Scarborough Shoal under (i) establishment and use of artificial islands
this law. installations and structures; (ii) marine scientific
research; (iii) the protection and preservation of the
Now let’s go to the Exclusive Economic Zone. This was
marine environment; (c) other rights and duties
recognized by our country as early as 1978 in PD 1599
provided for in the UNCLOS. Now a question is
where we established and EEZ with the distance of
frequently asked: Is China violating the UNCLOS
200 nautical miles from the baseline from which the
because of its acts? Yes! We already have a ruling
territorial sea is measured. The rights that can be
before the arbitral tribunal, the difference between a
exercised within the EEZ is provided for in PD 1599.
victory there is one difference between a winning
Sovereignty rights for the purpose of exploration and
decision and it enforcing that winning decision the
exploitation, conservation and management of the
decision cannot be enforced because we have no
natural resources, but they have to contend with the
international police that can enforce that decisions,
provisions of the UNCLOS as well because it has its
we cannot go to war against China. That decision
own enumeration of what rights can be exercised
remains to be in paper. What can be done is to
within the EEZ and since we are signatories to the
enforce that decision through diplomatic channels so
UNCLOS then we have to be compliant with its
that China will comply.
provisions. So this UN Convention of the Law of the
Sea provides for certain rights not only in the EEZ but Magallona v. Ermita (2011)
also in the territorial sea and the contiguous zone as
Now we have RA 9522, the amendment to the
well. So, in the territorial sea, what can you do? There
Straight baseline, this was challenged in Magallona vs.
are rights insofar as ships are observed. There’s this
Ermita. What were the grounds for the challenge?
innocent passage. You pass through the territorial sea
This opens daw the country’s waters land war to
innocently meaning, you traverse the sea without
maritime passage for all vessels and aircrafts
entering the internal waters or proceeding, etc. When
undermines Philippine sovereignty and national
does this passage no longer innocent? Meaning nay
security, damaging marine resources, violates
violation. The passage is innocent so long as it is not
constitutional provisions the law also divests us in our
prejudicial to the peace, good order or security of the
claim over the Kalayaan Island Groups, Scarborough
coastal State, and there’s an enumeration here of the
Shoal, etc. So this law is unconstitutional because it
activities that constitute prejudicial acts, prejudicial to
reduces our national territory. Is the law
the peace, good order or security of the coastal State,
unconstitutional? The Court said that no. it is a mere
among others: any threat or use of force against the
statutory tool to demarcate the country’s maritime
sovereignty; fishing activities, that’s considered
zones and continental shelf under the UNCLOS. It
prejudicial if done within the territorial sea under the
does not delineate Philippine territory. So the Court
UNCLOS. What about the rights in the contiguous
emphasized here that there are only limited state
zone? The coastal state within this zone has the
territory can be lost. It does not include the
power to a) prevent infringement of its customs,
delineation made by the same state insofar as its
fiscal, immigration or sanitary laws and regulations
baselines are concerned. UNCLOS has nothing to do
within its territory or territorial sea; b) punish
with acquisition or loss of territory, this is a treaty
infringement thereof. And finally the EEZ, what are
regulating sea use rights over maritime zone and the
the rights that can be exercised within this zone, are
adoption of the UNCLOS through RA 9522 does not
any a) sovereign rights for the purpose of exploring
result in the loss or acquisition of territory. What
and exploiting, conserving and managing the natural
baseline laws do instead of losing or ceding territory is
resources, whether living or non-living, of the waters
to mark out only specific base points along the coast
superjacent to the seabed etc. Just read these
from which baselines are drawn, observe geographic
provisions: (b) jurisdiction as provided for in the
starting points, to measure breadth of the maritime
relevant provisions of this Convention with regard to:
 CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 79

zones and continental shelf. Again, this drawing of the Outermost points of the
lines is not one of the means by which territory is lost. archipelago are connected by
straight lines
It can only be lost through occupation, accretion,
 Amendment of RA 3046
cession and prescription, not by executive or bilateral o We now have RA 9522
treaties or the regulation of sea use rights or enacting
statues to comply with the treaties to delimit our 2nd ELEMENT OF THE STATE – PEOPLE
maritime zones. Did we divest ourselves in our claim
People – may be construed to include inhabitants of
in the Kalayaan Island Group and the Scarborough this country
Shoal when we adopted this RA 9522? The Court said  Regardless of nationality, is considered as
no. the law recognizes under Section 2 thereof that people, in the context of a state
our country exercises sovereignty and jurisdiction  Art. 2, Sec. 15 and 16 – talks about natural
people
over Kalayaan Island Group as well as the
 Art. 3, Sec. 2 (Bill of Rights) – provides two
Scarborough Shoal. The law itself recognizes our types of people:
sovereignty and jurisdiction. It does not divest us even o Natural people
if dili sila musulod sa atong baseline because the o Juridical people
-> We are accorded protection under this
Court said if we include these islands in the baseline
clause
then we will be departing from the provisions of the  Right to be Secure
UNCLOS and that would be more troublesome. Still  Right against Warrantless
the law recognizes our claim, exercise of sovereignty Searches and Seizures
not by including them within the baseline but by a -> Does not distinguish between juridical
and natural person
separate provision in RA 9522. In fact this law  Art. 13, Sec. 1 – priority given by the
expanded the measurement of our territorial sea to a Constitution to the enactment of measures to
certain extent. And so this law is not considered to be protect the people (human dignity, social
unconstitutional. We will continue next meeting. justice, etc.)

DAY 10 – JULY 12, 2018 Art. 3, Sec 2 – The right against unlawful searches and
seizure
Transcribed by: Gador  Rule: Your premises can’t be searched if there
is no valid search warrant, unless if under the
Discussion on the National Territory in the course of exceptions
discussing the four (4) elements of the state.  Rule: Cannot be arrested, unless the arresting
 Archipelagic doctrine – all the internal waters officer had a warrant, unless under the
and those by the baseline, they form part of exceptions (e.g. warrantless arrest)
our territory
o Use the straight-base line method to Question: Does it distinguish aliens from Filipinos?
determine the measurements of our  Does the right only apply to Filipino citizens
territorial sea and not aliens?
 Inside = part of our internal o Are they not given the same right
waters under the law?
 Outside = 12-nautical mile
territorial sea Answer: Qua Chee Gan v. Deportation Board
 24-nautical mile
contiguous zone and Facts: Qua Chee Gan was charged before the
200-nautical mile EEZ Deportation Board for having purchased US dollars
 Two (2) types of methods by which baselines worth $230,000 without the necessary license from
are measured the Central Bank. He clandestinely remitted the same
o Normal to Hong Kong together with some of the petitioners.
o Straight line They were also found to have used bribery.
 They are using this method
These aliens were served with warrant of arrest after
they were charged before this Deportation Board

issued by its presiding member. This warrant includes
a surety bond. They were arrested.
Petitioners’ contention
They were challenging the validity of the warrant.
According to them, the warrant is void because it was
not issued by a judge Under the Constitution, only
judges can determine probable cause as to whether a
warrant of arrest should be issued. Here, it was issued
by the Deportation Board.
State argument
The petitioners cannot raise such defense because
they were aliens, and as such, are not covered by the
rights of the country.
Issue
Whether or not aliens cannot avail of such right. Yes.
Held: The Court cannot hold the argument of the
State as meritorious. It cited a provision of the 1935
Constitution – the right of the people to be secure in
their persons, houses, and effects; right against
unlawful searches and seizure under the Bill of Rights
at that time (also present in the 1987 Constitution).
This is a popular right of the people, and of course,
equally applies to all citizens and foreigners in this
country. It does not distinguish whether or not you
are an alien as long as you are sojourning in this
country.
Furthermore, this guarantee in the Constitution
provides this requirement of probable cause may only
be issued by a judge after examination under oath of
the complainant and the witnesses that may be
produced.
As such, it is wrong for the State to make a distinction
between a Filipino citizen and an alien. This right
applies to all.
The Constitution also speaks of citizens. How can you
be considered as a Filipino citizen?
Two modes:
 Jus soli
 Jus sanguinis
But that was before. Now, it is only jus sanguinis.
Pertinent provisions: Art. 4 (Citizenship), Art. 2 and 3,
Art. 6 Sec. 2, Art. 7, Art. 15.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 80
People can also pertain to electors, capable of
exercising their right to suffrage under Art. 5.
3rd ELEMENT OF THE STATE – SOVEREIGNTY
Is it true that the State is supreme by itself – power to
limit itself.
Doctrine of Auto-limitation
Doctrine where the Philippines adhere to
international law, and the adoption of the principles
of international law become limitations to our
exercise of sovereignty.
Why limit or restrict our own sovereignty?
It is because we have to acknowledge that in this
world, we are all sovereigns; we are operating in a
network of sovereigns. You cannot impose your right
over a certain country as it would also insist that it is a
sovereign. So, in order to have this harmony between
all nations, there has to be a common ground – a self-
limitation, a recognition of international principles
that are applicable to all - and as such, these
sovereigns recognize that they could limit themselves
insofar as the application of these principles are
concerned.
This is recognized by our jurisprudence.
Tanada v. Angara – the sovereignty of the Philippines
is subject to restriction by its membership in the
family of nations and the limitations imposed by
treaties.
Principle of Incorporation (Art. 2, Sec. 2)
The generally accepted principles of international law
form part of the laws of our land.
 Pacta sunt servanda – obedience or
compliance with our obligations in good
faith
People v. Gozo
Facts: Gozo bought a house and lot and located inside
a US Naval Reservation in Olongapo City. House was
demolished and a new one was built. However, a
building permit was not secured from the city mayor.
She was charged with the violation of a city ordinance
and was sentenced to imprisonment of 1 month.
Respondent argument
This ordinance is invalid and not applicable to her or
to her property which is inside the Naval Base. She
claimed that the city has no jurisdiction insofar as the
naval base is concerned because it is not part of the
Philippine territory.

Issue
WoN the city has no jurisdiction over her property
which is inside the naval base. It has jurisdiction.
Held: On the discussions regarding military bases,
after the expiration of the agreement, the US seceded
to us the territory which belong to them after the
expiration. But, we still have agreements with them
insofar as exercises are concerned, but we did not
return to US the control of these territories. Now, no
part of the Philippines is under US territory.
This has been recognized by the Court in several
cases- because of this agreement between the US and
the Philippines, the Philippine government merely
consented that the US exercise jurisdiction in certain
cases, not all the time. This consent was given as a
matter comity and expediency. But, the Philippines
has not abnegated its sovereignty over these bases as
part of the Philippine territory or divested itself
completely of jurisdiction over offenses committed
therein.
Under the terms of the treaty, the US government has
prior or preferential, but not exclusive jurisdiction
over such offenses. As a sovereign, the Philippines can
limit, by this agreement, the extent that we could
exercise our jurisdiction precisely because we are
sovereign. We can limit our sovereignty in an
agreement with another sovereign. But, that does not
mean that we are relinquishing altogether our
sovereignty in that area. The Philippine government
not only retains its jurisdictional rights not granted,
but also other rights ceded by the US for the purposes
of holding to make use thereof.
The case has been reiterated in other cases.
 The Philippines be independent and
sovereign; its authority may be exercised
over its entire domain. There is no portion
thereof that is beyond its power; its
commands is paramount.
As such, the argument of Gozo to escape liability is
wrong because the Philippines has jurisdiction even if
that is a naval base.
The Court recognized here the concept of auto-
limitation – a state may, with its consent, expressed
or implied, submit itself to a restriction of its
sovereign rights. Thus, there may be a curtailment of
what otherwise would be power plenary in character.
This is the concept of sovereignty as auto-limitation.
This is the property of the State force due to which
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 81
there is exclusive capacity of legal self-determination
and self-restriction. So, if it chooses, it may refrain
from the exercise of that, otherwise, it would be an
illimitable competence.
In conclusion, there is that modes when the State
exercises its auto-limitation in diminution of
jurisdictional rights, but it does not disappear entirely.
Nor does it not precluded from allowing another
power, another State to participate in the exercise of
jurisdictional rights over certain portions of the
territory.
If it does so (i.e. giving to US the power to hear cases
insofar as these people are concerned, those residing
in the naval base), it does not mean that those areas
already become impressed with an alien character.
They maintain their status as native soil still subject to
our authority.
Jurisdiction will be limited or diminished, but it does
not disappear. So, within our territory, whatever
statutory powers that we can exercise, we can validly
exercise. That is the Doctrine of Auto-limitation.
Two ways by which international law may be part of
municipal law:
1) Incorporation (Art. 2, Sec. 2)
If the principle of international law is
generally accepted, the Philippines adopts the
generally accepted principles of the
international law as part of the law of the
land.
2) Transformation
Transform the agreement or international
principle into a law, among other things.
Doctrine of Incorporation and its relationship with
treaties and agreements
Tanada v. Angara
Facts: Deals with the agreement signed by Philippines
to the World Trade Organization. It is one of the
founding members of this WTO. Being a member of
the organization entails obligation.
It is argued that these WTO agreements are
unconstitutional in that these require the Philippines
to place the products of other countries in the same
footing as Filipinos and local products. This therefore
would “invalidate” the Filipino-first policy – local
products will not be consumed by the people as entry
of these foreign products would be easier.

They also claim that the WTO intrudes and limits the
powers of the SC and Congress, among other things.
These are the arguments against WTO.
Issue
Do the provisions of WTO violate the constitution?No,
they do not.
Discussion: The case was dismissed by the SC.
Provisions raised by the contending party in the case
Art. 2, Sec. 19 – The State shall develop a self-reliant
and independent national economy effectively
controlled by Filipinos.
National economy and patrimony [Filipino First
Policy] – In rights, privileges, and concessions
governing the economy, qualified Filipinos shall be
preferred.
Art. 12, Sec. 12 – There should be preferential use of
Philippine labor, materials, etc.
Court answer
Some of these principles are not self-executing. Also,
reading through the others which may be self-
executing, they should not be read in isolation. They
should be read with the entire document and the
Constitution.
As such, they should be read, these economic-
nationalist concepts, with other constitutional
mandates in order to build a balanced development of
the economy.
If we read these provisions in isolation, how can we
compete with the rest of the world? We would be
isolating ourselves, restricting entry. We would not
get the development that we have today if we won’t
open ourselves to the evolution of trade, among other
things.
Question: Is this not inconsistent with the ruling of
Manila Prince Hotel v. GSIS? NO!
This is because the principle invoked there – the
Filipino First Policy – only apply to rights, privileges,
and concessions which cover the national economy
and patrimony and not to every aspect of trade and
commerce. The Manila Prince case is in fact the
exception rather than the general rule
The Court also determined that there are enough
balancing provisions that allow the operation of the
WTO agreement so that it would not be inimical to
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 82
our country. Even if the Constitution mandates a bias
in favor of Filipino goods, it would still recognize the
need for business exchange with the rest of the world.
Note: The Court recognized here that these treaties
and international laws, they limit our sovereignty.
While sovereignty is traditionally been deemed as
absolute and all encompassing on the domestic level,
it is subject to restrictions and limitations voluntarily
agreed to by the Filipinos, expressly or impliedly, as a
member of a family of nations.
The Constitution did not envision a hermit-type of
isolation of our country from the rest of the world.
And so, what is this Doctrine of Incorporation again?
Review: We adopt generally accepted principles of
international law as part of the law of the land.
Therefore, we are bound by these generally accepted
international law as they form part of our national
laws as well. And one of these principles of
international law generally accepted is pacta sunt
servanda.
Pacta sunt servanda
We, by signing in an agreement, we have to perform
whatever it is in our obligation in good faith. By doing
that, we recognize the existence of this agreement
and the application to that.
The Court also emphasized here that treaties are not
mere moral obligations, but they really create a
legally-binding obligation between the parties.
What are the effects of treaties?
Aside from the international laws which involve
general principles which we adopt under this doctrine
of incorporation, we also have the power to enter into
treaties. In the same way, by entering into a treaty,
we also limit ourselves, our sovereignty. Treaties limit
or restrict the absoluteness of sovereignty because
we recognize that we have obligations that we have
to comply with.
Nations may surrender in fact in that treaty some
aspects of their state power in exchange for greater
benefits derived from a convention. After all, states,
like individuals, live with co-equals. In pursuit of
mutual benefits, they can commonly agree to limit
their exercise of their otherwise absolute rights.
HELD: In conclusion, this sovereignty cannot in fact
and in reality, be considered as absolute because
certain restrictions come into the picture -
membership in that group of nations and limitations
imposed by treaty stipulations.

Bayan v. Zamora
Facts: This is the case which was mentioned in the
Laude and Nicolas case on the VFA.
We entered into this VFA after the expiration of the
Military Bases Agreement – Mutual Defense Treaty.
This VFA was ratified by the Senate through the 2/3
vote of its members.
Thereafter, there was an exchange of notes between
our representative and the representative of the US.
The VFA then came into full force. This was then
challenged.
Issue
WoN the VFA was unconstitutional.
Discussion: The Visiting Forces Agreement is an
agreement which determines the treatment of US
troops and personnel visiting in the Philippines and
guidelines which govern such visit.
Provisions involved in the case
There are limitations in our Constitution insofar as the
entry of the military bases are concerned. They can
only enter if we permit them, and also if we follow the
restrictions.
Art. 7, Sec. 21 – No treaty, or international
agreement, shall be valid and effective unless
concurred in by at least 2/3 of all the members of the
Senate.
Art. 18, Sec. 25 – Entry of these foreign military forces
can only be done in our country by way of a treaty
and the formalities of a treaty.
After the expiration of the agreement, foreign military
bases, troops, or facilities shall not be allowed in the
Philippines, EXCEPT:
 Under a treaty duly concurred to by the
Senate, and
 The Congress so requires ratify the majority
of the votes cast
Art. 18, Sec. 25 did not say how much is the voting
requirement of the Senators. There’s a reference,
however, to Art. 7, Sec. 21:
No treaty or international agreement shall be
valid and effective unless concurred in by at least
2/3 of all the Members of the Senate.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 83
And that’s where the SC connected it.
Based on those requirements under Art. 18, Sec. 25,
how can you allow foreign military troops in the
country?
1. It must be in a treaty.
2. The treaty must be duly concurred in by the
Senate.
3. It must be recognized as a treaty by the other
contracting State.
In the case, the first two requirements are already
present – there is a treaty, and it was already
concurred to by the Senate.
Question: Where do you multiply the 2/3
requirement? To the number of the present Senators,
or the absolute number?
The Court said the 2/3 requirement should be
multiplied with the absolute number, 24. As such, to
validly effect a treaty of this character, there must be
at least a total of 16 votes, which was done in the
present case.
Contending party claim
The 3rd requirement is what is being contested
because allegedly, it was not recognized by the US. It
was said that the treaty was not submitted to the US
Senate. The contending party said that the US Senate
should have also agreed insofar as the treaty is
concerned.
Court answer
The Court said there is no need for that. The fact that
it has been recognized by a valid representative of the
US (ambassador), the US government has committed
itself to the VFA
Note: Take not of the nature of ratification.
Who ratifies the treaty? Who concurs with the
ratification?
Ratification is an executive act
Ratification is an executive act; thus, it can only be
done by the President. What the Senate does is to
concur with the treaty under the Constitution.
Bayan v. Romulo
Facts: The case deals with the Non-Surrender
Agreement.

If there is an issue, insofar as citizens, or people,
persons between the US and the Philippines is
concerned, there is this Non-Surrender Agreement.
This agreement was concluded sometime in 2003. By
the US and the Philippines, by way of exchange of
notes. The representative of our country and the US
put the agreement into this document – exchange of
notes only, not a treaty.
Objective of the Agreement
It protects what it refers to as persons of the
Philippines and the US from frivolous and harassment
suits brought against them in international tribunals.
Meaning, if there are US citizens here and they are
being hailed by the ICC, because of this agreement, we
can choose not to give this person to the ICC.
Who are the persons in this agreement?
 Current or former government officials
 Employees or military personnel of the US and
the Philippines
These persons present in the territory of the other
shall not, without the express consent of the other
State, be surrendered and transferred to any
international tribunal for any purpose, unless that
tribunal has been established by the UN Security
Council. May also not be surrendered or expelled to a
3rd country for the purpose of surrender to any
international tribunal.
If there are any extradition of a person of the US to a
3rd country, our country will not agree to the surrender
or transfer of that person to any international tribunal,
unless that tribunal was established by the UN Security
Council.
There is this mutual agreement insofar as these
persons are concerned. This agreement is now being
challenged, because according to those challenging it,
this agreement should be contained in a treaty and
not a mere exchange of notes. Furthermore, the
Philippines is also a signatory to the Rome Statute
establishing the International Criminal Court. And so,
this Agreement run counter to our agreement with
that Court.
Issues
1. Is the agreement valid?
2. Should this agreement be in a treaty?
Discussion:
1. Is the agreement valid? YES, this agreement is valid
even though it is not in a treaty.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 84
What is important to us it the discussion of what these
instruments are.
The Court said that challengers of this agreement are
not aware of the concept of incorporation.
Incorporation
This illustrate that generally accepted principles of
international law form part of the laws of the land.
Among those are instruments that used by these
States in forging agreements.
Exchanging of notes is one of the instruments for
forging agreements
One of such instruments is the exchange of notes. This
is a formal, technical term insofar as international law
is concerned. This is an intergovernmental agreement
which is accepted as a form internationally. It is a
record of a routine agreement that has many
similarities with the contract. It consists of the
exchange of documents, each of the parties in the
possession of one side, and the representative of the
other. So literally, there is an exchange of notes. The
Court also mentioned that “exchange of notes” and
“executive agreements” have been used
interchangeably.
Difference between “exchange of notes”/executive
agreements, and treaty
The two do not differ as to their binding force; they
only differ in the way the treaty is ratified and
concurred in. There is still this concurrence
requirement from the Senate. Meanwhile an executive
agreement/”exchange of notes” does not require
concurrence of the Senate.
In the case: So here, this non-surrender agreement
was embodied in an exchange of notes, there is
therefore no need for the Senate to concur with the
same.
2. Should this agreement be in a treaty?NO, there are
no hard and fast rules in the propriety of entering
into an executive agreement as an instrument of
international relation.
In fact, the Constitution, EXCEPT for the entry of
foreign bases, there is not other mention as to how
international agreements may be entered into by us
and foreign states.
The primary consideration in the choice of an
agreement is the parties’ intent and the desire to cast
an international agreement to further their respective
interests.

It is the only thing that must be contained in a treaty,
insofar as the Constitution is concerned, is what is
stipulated in Art. 18, Sec. 25 (entry of foreign military
bases).
Corollary Issue: Does this agreement contravene the
Rome statute which the Philippines is a signatory? NO,
this Rome statute operates under the concept of
complementarity.
If we take cognizance of this case over this person of
which would be subject to the jurisdiction of the ICC,
we do so to the exclusion of the ICC.
Jurisdiction of the ICC is to be complementary; it is not
exclusive – national, criminal jurisdiction. It doesn’t
mean that just because we’re signatories, and there
are those crimes enumerated within the ICC, that
automatically they take cognizance. This is because the
state, can, in fact, exercise jurisdiction over the offense
and over that person precisely because that person is
an inhabitant of that state.
It is the duty of every state to exercise its criminal
jurisdiction over those responsible for international
crimes.
So, what does this agreement do? This agreement, we
can not send these people from the US to the ICC
pursuant to the same. And it illustrates the concept of
complementarity because the other state must
consent before this person can be sent to the ICC.
The Court underscored that sovereignty can be limited
by international agreement just like what we entered
into here. The agreement was recognized by the US via
publications, among other things.
Note: Remember the concept of complementarity
here of the Rome statute.
National Criminal Jurisdiction
It is always the responsibility of our country to
prosecute a criminal for offenses covered by the Rome
statute, or we could accede/give jurisdiction over this
person to the ICC. Thus, the Philippines may decide to
try person of the US, because the person violated our
laws here, as clearly understood in the agreement
under our national criminal justice system.
We may also opt not to exercise this general
jurisdiction over the crimes committed and defer the
same to the jurisdiction of the ICC.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 85
The jurisdiction of the ICC as well as ours is not
exclusive – one may select where the case is to be
presented.
Question: Why would states limit themselves to other
states?
 By doing so, there may be greater benefits
that can be derived
Deutsche Bank
Facts: Under the Tax Code, there is this requirement
for foreign banks that their taxes payable in our
country are withheld at this 15% rate.
Now, we have this Deutsche Bank which paid this 15%
pursuant to such law. Later on, it claimed a refund,
because according to this bank, there is an agreement
between our country and Germany.
We have a tax treaty provision instead of withholding
15% tax, it will be only 10%. So, there’s this excess of
5% which amounts to P22.5M. So, it asked for a refund
from the Commissioner.
The Commissioner, however, denied the claim because
there is this RMO 1-2000 which requires: you violated
the order when you did not present your claim 15
days prior to the occurrence of the transaction.
Because of that, the reclaim for refund will not be
granted.
Issue
The case went to the SC, arguing which is stronger –
the RMO or the treaty?
Discussion: The Court upheld the force of the treaty.
Why?
Due to pacta sunt servanda
The treaty of our country and Germany has to
be complied with in good faith. Demands of
performance in good faith of the treaty will be
forgiven in this treaty, among others,
obligations as well as privileges.
One of the obligations was that we could only
tax this bank with 10% instead of 15%
Question: Why do our country enter into tax treaties?
It is to reconcile national fiscal administrations of the
contracting parties, otherwise, it would be very
cumbersome. There should be a tax relief, and we
could do that by entering into treaties.

Question: What about the RMO, which requires the
15-day period?
The Court said that this memorandum order:
Does not even provide that “if you fail to comply with
it, your claim would be denied” and if you follow this
RMO, you would defeat the purpose of this treaty.
This order should not operate to divest entitlement to
the belief of the bank here as it would constitute a
violation of our duty required by good faith in
complying with a tax treaty. If we insist on the
applicability of this RMO, we would impair the value
of this tax treaty – Germany would withhold it. It must
be faithfully observed
Question: Is it also logical to require in so far as refund
cases is concerned to observe this 15-day period.
The Court said, when we talk about refund, you have
already committed the transaction, you have already
paid tax. It is illogical for you to impose a 15-day
period prior to the transaction because you’re taking
a refund precisely because the transaction has
transpired. There is no reason that they are claiming
for a refund to apply this 15-day period. So, the treaty
was upheld.
CDK Power v. CIR
Facts: There are treaties involved here, not only in
Germany but in other countries, which provides for
preferential tax rates. There was also a claim for
refund, which was denied by the CIR due to the RMO.
The Supreme Court held that the treaties should be
given effect, citing the previous case.
The compliance or the obligation to comply to the tax
treaty must take precedence over the objective of this
RMO. Logically, the compliance with tax treaties has
negative implications on international relations and
duly discourages foreign investors.
While the consequences prevented by this RMO
involve administrative procedure, applying the
remedy to other processes, but not the imposition of
the penalty.
Question: What if there is a conflict between an
international law and a municipal law? What if there
is a conflict between a treaty and local law? Which
should govern?
Lim v. Executive Secretary
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 86
Facts: How was the Balikatan Exercises created?
Because of the expiration of the mutual defense
agreement, the Philippines entered into the VFA.
Joint exercises were then conducted with our own
forces. The Balikatan Exercises were made on a
“terms of reference” entered into by the Secretary of
Foreign Affairs and the representative of the US.
Issue
Is the Balikatan Exercise unconstitutional? NO
Discussion: This is because the Balikatan Exercise is
covered by our obligations in the VFA.
In the VFA, it permits US personnel to engage in
impermanent basis in activities, so that is what is
allowed. The definition of “activities” is very vague.
What constitutes “activities”?
In order to construe that provision, the Court went to
the Vienna convention insofar in interpreting the
provisions are concerned. Going over the provisions,
the cardinal rule in the interpretation of ambiguous
terms in treaties must involve an examination of the
text which is presumed to verbalize the parties’
intentions. The Vienna convention may allow the use
of aids to deduce the meaning of its terms.
Now, using those aids, the Court concluded that the
“terms of reference”/ToR which involves the
Balikatan, rightly falls within the context/terms of the
VFA.
The word “activities” was deliberately used by the
parties to that agreement in order to give leeway to
them to negotiate. The purpose of the joint exercises
is to introduce techniques on patrol, to enhance our
combat capability.
Question: Can, under this Balikatan exercises, the
American troops actually engage in combat in the
Philippines? Does the word “activities” include the
meaning combat?
The Court said yes, they can engage in combat as long
as it is not offensive. Meaning, it is done so only in
self-defense. Reading the provisions of the VFA vis-à-
vis the ToR vis-à-vis the mutual defense treaty,
together with the provisions of the Constitution
where we renounce war as an instrument of national
policy, we cannot engage in offensive combat.
 CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 87

Difference of treatment of treaties insofar as Invoking the Paris convention- on intellectual property.
international law is concerned and insofar as our
jurisdiction is concerned Trial court:
Before the trial court held that there was infringement of
For the perspective of international law, if there is a
BGCI's rights, so liable si Shangri-la for it use of the logo
conflict between a treaty and a municipal law, the
treaty would govern under the principle of pacta sunt Court of Appeals:
servanta because you have to comply with the Affirmed the Trial Court's ruling. Court apply the RA 166 and
obligation. not the Paris convention. Shangri-la is not using this logo in
the Philippines and because of that the Court of Appeals
But, under our jurisdiction, it be recognized that these rejected the application of the Paris convention and applied
two, none of them is better or higher than the other – the RA 166
they are treated equally. In fact, the Supreme Court
Paris convention RA 166
can nullify, review the validity of treaties entered by
Does not require actual you have to prove actual
us and other states. use use in this country

Remember: In our jurisdiction, when there is a Supreme Court Ruling:

conflict between the treaty and municipal law, you do
not treat the treaty as superior to municipal law –
you treat them equally. How to treat the difference?
Apply the provisions of Conflicts of Law.
Paris Convention not applicable, upheld the ruling of the CA
in the Paris ruling but reversed the ruling infringement is
concerned.
No infringement.

DAY 11 – JULY 13, 2018 New intellectual property code: RA8293

significant adoption of the agreements of the paris
Transcribed by: Enano convention and the rule that if incorporated from the paris
agreement is that persons who may question a trade mark
Doctrine of Incorporation: includes person whose internationally well known mark.
whether or not registered is identical with using of the similar
(dili masabtan)
International law in municipal law

These two under our jurisdiction are supposed to be treated
equally. International should not be treated superior to a
municipal law
Shangri-la v Developers 2006
This involves trade mark. the Shangri-la mark and the
developers logo. It is claimed by this GCI that it was the first
to register the trade mark of Shangri-la as logo with the
Bureau of patents and trademarks sometime in 1982 and
started using this logo in their restaurant business.
there is this protection of whether or not this mark is
registered or not.
However, While the Philippines is already a signatory to this
Paris convention, this intellectual property took effect
sometime in 1988 and therefore the Intellectual Property
code does not apply here.
What would apply?
Trade mark law or the Paris agreement

On the other hand the other family which own a chains of Between the trademark law and the Paris convention - if
hotels and uses the name shangri-la and claims that as far as there is a conflict between the International and municipal
1962 they have been using this shangri-la name in all of its law, they apply equally. We test them and one of them is not
hotels and hotel establishments around the world and when superior than the other
they discovered that DGCI is using this Shangri-la and
wanted to operate here in the Philippines, they filed a case Paris Convention Trademark law
for cancelation of registration of DGCI's registration of its mandates that the Requires actual use or
logo protection should be commerce in the
afforded to philippines
Reason: internationally known
they were the first, and that DGCI was just copying the logo, marks whether or not the
it would be confusing to the patrons if similar ilang logo same is registered license
or doing business in the
BGCI reply: Philippines
Filed a case in retaliation for infringement and damages
against Shangri-la. because they were the one to first register Our municipal law on trade mark regarding the actual use in
the logo in the Philippines and in fact it was Shangri-la that is the Philippines must subordinate an international agreement
using its logo illegally because the apparent clash is being decided by a municipal
tribunal.
Defense of Shangri-la

Affirmed the ruling of the Court of Appeals- trademark law.
the fact that an international law is made part of the law of
the land does not by any means imply it's primacy over
national or municipal law under the doctrine of incorporation
rules of international law are given an equal standing not
superior to a national legislative.
Philip Morris v Fortune Tabacco 2006
Again, Intellectual property case on the use of a trademark
Mark seven to Mark ten. It is argued here that Philip Morris is
the registered owner of the trademark. Fortune tabcco
without consent from Philip Morris has been using this trade
mark and invoking the provision of the Paris convention
Philip Morris points out that it can sue in this country when
there is trademark violation and that under the trademark
law they are entitled for damages.
Trial Court:
Dismissed the complaint against Philip Morris after finding
that there was no commission of a trademark infringement
Court of Appeals
Upheld the ruling of the trial court
Supreme Court:
The protection of the trademarks in this country is not
automatic, the fact the respective home countries involve
here are together with the Philippines are members of the
Paris union does not automatically entitled Philip Morris the
protection of Trade Mark in this country If there was no
actual use of the use of the marks in local commerce and
trade
in conflict against international convention vs the local or the
municipal law of this trademark law was at issue.
It is true that the Philippines adheres to the Paris Convention
and effectively obligates the country to honor and enforce its
provisions as regards to the protection between the
industrial property of foreign nationals in this country,
however any protection afforded has to be subject to the
limitation of the Philippine laws .
Hence , Despite the article in the Paris convention which
provides that member countries of this convention have
rights and enjoy privileges i the Philippines among other
requirements, foreign nationals must still observe and
comply with the conditions imposed by Philippine law on its
nationals. And considering here that the trademark law has
amended, mandates the actual use of the marks and
emblems in local commerce before they may be registered
and ownership therefore is acquired. Philip Morris cannot
dispense with this element of actual use. So dili automatic, so
there is this requirement of the actual use using the trade
mark law.
under the doctrine of incorporation rules of international law
while incorporated, even if they are adopted they are not
even superior treatment vis-a vi local or municipal laws.
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 88
SOFT LAW
If there is a soft law, is there a hard law?
yes,
Pharmaceutical v DOH 2007
EO 51 known as the milk code, issued by president Corazon
Aquino. One of the clauses of this milk code seeks to effect
this article in the international code of breast milk substitutes
uphold and adopted by the world and health assembly.
This world and Health Assembly has adopted several
resolution pursuant to the International Code of Breast Milk
among others.
Later on the Department of Health adopted this IRR of this
new code. but there was a question i so far as the
applicability of this IRR is concerned, because according
those challenging the same it is going beyond the provision
of the MIlk code and the expanded law.
Defense of the DOH
This IRR implements not only the milk code but also various
international instruments regarding the infant and young
child nutrition
these international instruments do not however have a
specific provision regarding breast milk but in support still
they used this World health Organization resolution
Court ruling:
Only some of the provision are unconstitutional
ways of by which an international law can form part of t
he law of the land
transformation and incorporation
Transformation
requires an international law to be transformed into a
domestic law through a constitutional mechanism such as
-local legislation
Incorporation
BY mere constitutional declaration, international law is
already given the force of a domestic law ,the generally
accepted principles of international law forms part of the law
of the land
What about this MCIBS?
MCIBS is not a treaty they have not been concurred with the
senate. is it still binding in the Philippines?
IT IS! because it had been transformed as a local law
through the milk code. It is the milk code that have a force
and effect of law and jurisdiction and not the MCIBS per
se.
Concept of Incorporation:
only general accepted principles of international law are
incorporated in our law.
What are these?
 CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 89

These referred to norms of general or customary

international law which are binding to all states. WHY?
Because all rights come from the state and the state can do
Example: anything, it can be dishonest. It has the prerogative to be
-Renunciation of war dishonest.
-Principles of sovereign immunity
-right to life THERE IS NO LEGAL AGAINST THE AUTHORITY WHICH
-right to liberty MAKES THE LAW ON WHICH THE RIGHT DEPENDS
-Right to due process
-Pacta sunt servanda Does this Doctrine of royal Prerogative of Dishonesty
apply to foreign states?
They have the character of used rational and therefore valid Yes! because they are also considered as states because of
through all kinds of societies, acceptable to all. this sovereign equality of the states, immunity is likewise
enjoyed by other states consonant with the international
And because of their acceptability they acquire this principle of pare in pari et padent imperium
obligatory force. Therefore this generally accepted principles
of international law can be adopted in our country trough Republic v Villasor 1973
incorporation there was case granting in favor of the plaintiff here against
the state confirming an arbitration award- pabayron ang
What about the WOH resolution? state here as so far as the arbitration award is concerned. The
are these resolutions binding in the Philippines? court ordered the execution of payment
these resolutions are not, they have not attained the status of
customary law or general principle of international law and What is the entity involved here?
therefore they arr not deemed form part of the law of the Armed Forces of the Philippines
land
gipang levy ang funds sa AFP sa banks- gipang garnish ug
How to treat them? gireserve para sa mga nadagod sa suit
THEY CAN BE TREATED AS A SOFT LAW or non binding
norms and principles and practices that only influence state Can that be Done by the court?
behaviors. VOID! the general rule is that the state is except from the
suit except if it consents
they only express these non binding norms that guide state
behavior as well as its policy formulation Why?
Because there can be no legal right against the authority
Soft law Hard law which makes the law on which the right depend.
Non binding norms, Binding international law
principles and behavior the court also noted the practical sense- because if you can
sue the state anytime you want, the state swamped with so
Let us review the topics of sovereignty: many cases and therefore cannot do its job because it will be
Sovereignty defending it's self left and right
is the supreme uncontrollable power inherent in a state
Now if the state consent to be sued and win in that suit,
Limitation of sovereignty: does that mean that judgment can be executed against
We can apply international laws by way of incorporation and the state?
transformation Another step that you have to overcome, just because you
win, does not mean you can already take the public property
Sovereign Immunity: The royal Prerogative of dishonesty of the state in order to satisfy your ruling.
state immunity from suits
The rule:
Where do you find this state immunity from suits? Public funds cannot be the object for garnishment

Article XVI section 3 1987 constitution In this case:

The State may not be used without its consent. public funds belonging to the AFP cannot the object of
garnishment even if the state had consented to be sued and
you can sue the state as long as it consent to be sued. Under its liability adjudged
the general rule you cannot sue it.

How can this consent be expressed?

Express or implied?

Based on the very essence of sovereignty, it grants the state Why is it these public funds cannot be garnished?
the prerogative to defeat any legitimate claim against it by  These public funds cannot be released unless there
simply invoking its unsuability is an appropriation for that purpose

 If you can just get money from the state, mawala
ang purpose to which the public funds are allocated
When can we consider a suit is against the state?
Professional Video v TESDA
TESDA is an instrumentality of the government created by
RA 7796 attached to the DOLE and here TESDA entered into
a contract with a contractor for the creation of these PVC
cards, TESDA cannot pay the full amount. This prompted
ProVi to sue in the court for payment for the account
Court Ruling:
VOID in approving the writ of attachment
the nature of TESDA as an instrumentality of the government,
it can invoke the state immunity from suit. It is an
unincorporated instrumentality of the government directly
attached to the DOLE thereofre it is part of the general
machinery which we call the state.
When is a suit considered one against the state?
 If t is a sue against the republic by name.
 if it is a suit against the unincorporated government
agency
 if it is a suit against a government agency with a
charter with respect to the agency's performance in
the governmental functions
 The suit on its face is a suit against a government
officer but the ultimate falls within the government
If you can determine that this s suit against the state can now
invoke the doctrine of state immunity.
Did TESDA waived its immunity in Aquiring these cards?
NO! the TESDA did not enter into this contract for a
commercial purpose
If the government entity enter into contract, you determine
if the contract is commercial in character or pursuant to its
government purposes.
If it is pursuant to its commercial character then there may
be waiver to its immunity
In this case:
It was pursuant to its governmental function and the TESDA
here may be covered by the concept of state immunity from
suit,
So, TESDA is immune from suit- can defeat the suit if it can
be proved that the suit is without its consent
Granting that the TESDA here can be validly sued can the
funds of TESDA be subject of garnishment?
NOI the funds of TESDA are public in character and are
except from attachment and garnishment. As a rule public
funds cannot be object of garnishment proceeding even if
consent to be sued have previously granted and the states
liability is adjudged
why?
CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 90
These Public funds and their disbursement thereof must be
covered by corresponding appropriation as required by law.
But if the appropriation is for that purpose then PWEDE.
In this case:
There was no approprition. walay fund na mappropriate to
pay these breaches in the contract
Heirs of Pidacan v ATO 2010
this involves expropriation proceedings. If the state exercises
its power of eminent domain- how is it exercised, through
appropriation proceedings, and if there is an exercised of this
power there should be payment of just compensation
Air transportation office used the property of Pidacan so they
demanded the payment of the value of the property
ATO did not want to pay
Heirs filed case against ATO
Trial court ruling:
In favor of the heirs and held that conversio of the property
came within the purview of the concept of eminent domain-
payment of just compensation should be given and pursuant
to that there was an order to execute this judgment
and so the properties of ATO were garnished pursuant to this
purpose
the heirs claimed their claim pursuant to the appropriate law
PD 1445 they went through the proper process in order to
have their claim. dili automatic na gi garnish ang property sa
ATO
Supreme court ruling:
State immunity from suit cannot be invoked.
if it results to the perpetration of injustice on the citizens, it
cannot be used as an instrument in perpetrating injustice
Can the order be executed?
Yes! there was already a funding set aside for that purpose,
already ear marked in the general appropriation for the
specific purpose- payment for the payment n the execution
of power of eminent domain
Claim must be presented before the Commission on
Audit:
para mahimuna ug funds to be included in the general
appropriation actpara mabayran siya.
ATO v Ramos 2011
Can the ATO be sued without its consent?
yes, why is that?
There is a need to distinguished between the incorporated
government agency to which ATO belong to if it performs
governmental functions or proprietary or commercial
functions
 CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 91

Immunity can be invoked in the performance of

governmental function because its function is incidental to pass,to be discussed later
its creation

Immunity cannot be invoke in the performance of a

commercial function because that function involves an
exercise of a business
should the doctrine of state immunity apply to ATO?
NO! ATO is an agency not performing a purely governmental
or sovereign function it is instead involves the management
and among others and maintenance of the airport.
That is not an exclusive prerogative of the state in its
sovereign capacity therefore it cannot claim state
immunity
An Action for just compensation
the state immunity from suit rule does not apply, because it
will result in an injustice
China National v SantaMaria
this involves the North rail project. The China National
entered into a memorandum for the creation of the north rail
with the Philippines, to effect this contract nag utang. Now
there was suit against this contract
DOH v Phil Pharma 2013
Court emphasized that public officials cannot be sued for
acts done in the performance of their official functions and if
these act are done within the scope of authority because if
they are sued within that capacity they can invoke state
immunity from suit.
there is this administrative order setting the guidelines for
the accreditation of government suppliers and that
accreditation will be given to you valid for 3 years subject to
an annual review after that the DOH issued a memorandum
which provided for the list of category of sanctions to
accredited government suppliers if there is a finding there
products are substandard or misbarnding
Phil Pharma is liable
Court ruling
Applying the doctrine of non suability, it can be sued as long
as the state consent, how does the state consent? if it
expressly give its consent now there is a passage of law

Defense of the state implied or express

you cannot sue us because we are immune from suit
DoH is an incorporated agency which performs a
Court ruling: governmental functions
It is not immune from suit
solidary damaged: DOH and its officers doctrine can be
Classical-Absolute newer or the restrictive applied
Theory theory
A sovereign cannot Immunity of the mantle of non suability extends to complaints filed against
without its consent be sovereign is recognize public officials done in the performance of their official
respondent in the courts only with regard to public functions
of another sovereign acts of the state.
if you invoke that you must prove that you did that pursuant
not with regard to a to your official functions and if you can prove that then you
private acts or can rest easy because the doctrine of state immunity extend
commercial act to you

Commercial acts if you cannot prove that the act was pursuant to your official
Remotely connected with the discharge of the governmental functions, you did them with beyond your jurisdictional
functions capacity then you cannot claim state immunity

Philippines adheres to the restrictive theory
when there is a suit against the state and it involves a contact
now there has to be a determination whether or not the
contract is entered into by these entity pursuant to its
governmental functions or proprietary functions
when can you be validly sued even if you are a
government official?
If your acts are not in the performance of your official duties,
acts are ultra vires-showing of bad faith, you can be
personally held accountable for those acts

In this case: Are the acts imputed against the undersecretary, do they
China National is not engaged in a governmental function involve the personal act of the secretary?
but in a proprietary activity No, she did her investigation in pusruant to her official
capacity.
When there is an invocation of this restrictive theory the
legal nature of the act must be ascertained.

Heirs of Gamboa v Teves 2012

 CONSTITUTIONAL LAW I | ATTY. GIL GARCIA II 92

Arigo v Swift 2011

This case involves the Tubataha reef, why what happened
here? the USS Guardian a mined counter ship of he US navy
nabanagaan ang tubataha reef the ship have to be scrapped
and remove piece by piece. Because of that the people here
filed a case against the US navy as well as the government
official of the Philippines, a petiton of Kalikasan

Can a foreign state be included in a local jurisdiction?

Pusruant to a general rule, you cannot do that because of the
concept of the state immunity rule, it does not limit to the
local or the state you are living but also to foreign states. The
doctrine of state immunity does not only apply to the state
but also to complaints filed against the official of the state
and the officials of the other states that you are suing.

even so, we distinguished if the acts involved here of an

official is done on his official capacity then pwede invoke ang
immunity but if the act does not deal with his official
functions then that official can be sued.

Again the concept of juri beri and juri de juris

In this case:
In so far as the personnel are concerned they are the
commanding officers of the US navy and have the
supervision over this ship and the act that resulted to the
grounding they were performing their official duties, they
cannot be sued unless they give their consent to be sued

Did the VFA here waived all the rights over the US troops
visiting here in the Philippines?
waiver of state immunity only pertains to the criminal
jurisdiction and not to special civil actions such as writ of
kalikasan-no waiver.