POLITICAL LAW REVIEW
POLITICAL LAW REVIEW (1ST MEETING)
A. CHAVEZ VS JUDICIAL AND BAR COUNCIL G.R.
202242 (can congress have 2 members in
JBC)(POWER OF
AMENDMENT=”PEOPLE”/POWER OF
PROPOSAL=”CONGRESS”)
FACTS:
From the birth of the Philippines, the duty of
appointing members of the judiciary has been
the prerogative of the executive and legislative
branch which started from the malolos
constitution and 1935 constitution which vested
the power to appoint the members of the
Judiciary in the President, subject to
confirmation by the Commission on
Appointments.
Upon creation of the 1973 constitution the
power of appointment in the judiciary has
become exclusive to the executive branch which
only requires that all must have the
qualifications and none of the disqualifications.
This resulted to the framers of the 1987
constitution to create the Judicial and Bar
Council(JBC) in order to purge the judiciary of all
evils of political pressure and partisan activities
The JBC only consist of 7 member, but was
subsequently altered in 1994 when An eighth
member was added to the JBC as the two (2)
representatives from Congress began sitting
simultaneously in the JBC, with each having
one-half (1/2) of a vote.
The respondents or congress justified its actions
on the following grounds: that allowing only
one representative from Congress in the JBC
would lead to absurdity considering its
bicameral nature; 2] that the failure of the
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Framers to make the proper adjustment when
there was a shift from unilateralism to
bicameralism was a plain oversight; 3] that
two representatives from Congress would not
subvert the intention of the Framers to insulate
the JBC from political partisanship; and 4] that
the rationale of the Court in declaring a
seven-member composition would provide a
solution should there be a stalemate is not
exactly correct.
ISSUE:
WON the first paragraph of Section 8, Article VIII
of the 1987 Constitution allows more than one
(1) member of Congress to sit in the JBC; and
WON each House of Congress is entitled with
one (1) vote each is sanctioned by the
Constitution.
HELD:
FIRST ISSUE: (NO! ONLY 1 IS ALLOWED!)
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.(7
MEMBERS)(PURPOSE: TO PREVENT A
STALEMATE IN VOTING, WHICH IS WHY 2
PERSONS FROM CONGRESS CANNOT BE
ALLOWED TO BE MEMBERS OF JBC AND TO
NOT FURTHER INCREASE THE INFLUENCE OF
THE LEGISLATIVE BODY SINCE THEY WOULD
HAVE 2 REPRESANTIVES)
POLITICAL LAW REVIEW
The Constitution evinces the direct action of the
Filipino people by which the fundamental
powers of government are established, limited
and defined and by which those powers are
distributed among the several departments for
their safe and useful exercise for the benefit of
the body politic.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. Thus, in the
interpretation of the constitutional provisions,
the Court firmly relies on the basic postulate
that the Framers mean what they say. The
language used in the Constitution must be
taken to have been deliberately chosen for a
definite purpose. Every word employed in the
Constitution must be interpreted to exude its
deliberate intent which must be maintained
inviolate against disobedience and defiance.
What the Constitution clearly says, according
to its text, compels acceptance and bars
modification even by the branch tasked to
interpret it.
For this reason, the Court cannot accede to the
argument of plain oversight in order to justify
constitutional construction. As stated in the July
17, 2012 Decision, in opting to use the singular
letter "a" to describe "representative of
Congress," the Filipino people through the
Framers intended that Congress be entitled to
only one (1) seat in the JBC. Had the intention
been otherwise, the Constitution could have, in
no uncertain terms, so provided, as can be read
in its other provisions.
It is very clear that the Framers were not keen
on adjusting the provision on congressional
representation in the JBC because it was not in
the exercise of its primary function – to
legislate. JBC was created to support the
executive power to appoint, and Congress, as
one whole body, was merely assigned a
contributory non-legislative function.
SECOND ISSUE: (NO! CONGRESS IS ONLY
ENTITLED TO 1 VOTE!)
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On March 14, 2007, then Associate Justice
Leonardo A. Quisumbing said that
Two things can be gleaned from the excerpts
and citations above: the creation of the JBC is
intended to curtail the influence of politics in
Congress in the appointment of judges, and the
understanding is that seven (7) persons will
compose the JBC. As such, the interpretation of
two votes for Congress runs counter to the
intendment of the framers. Such interpretation
actually gives Congress more influence in the
appointment of judges. Also, two votes for
Congress would increase the number of JBC
members to eight, which could lead to voting
deadlock by reason of even-numbered
membership, and a clear violation of 7
enumerated members in the Constitution.
(Emphases and underscoring supplied)
xxx
Congress, in relation to the executive and
judicial branches of government, is
constitutionally treated as another co-equal
branch in the matter of its representative in
the JBC. On the other hand, the exercise of
legislative and constituent powers requires the
Senate and the House of Representatives to
coordinate and act as distinct bodies in
furtherance of Congress’ role under our
constitutional scheme. While the latter justifies
and, in fact, necessitates the separateness of the
two Houses of Congress as they relate inter se,
no such dichotomy need be made when
Congress interacts with the other two co-equal
branches of government.
It is more in keeping with the co-equal nature
of the three governmental branches to assign
the same weight to considerations that any of
its representatives may have regarding
aspiring nominees to the judiciary. The
representatives of the Senate and the House of
Representatives act as such for one branch and
should not have any more quantitative
POLITICAL LAW REVIEW Page 3 of 49

influence as the other branches in the exercise so they can become delegates themselves to
of prerogatives evenly bestowed upon the the Convention.
three. Sound reason and principle of equality
among the three branches support this
conclusion. Subsequently, Congress passed a bill, which,
upon approval by the President, on June 17,
1967, became Republic Act No. 4913, providing
The argument that a senator cannot represent a that the amendments to the Constitution
member of the House of Representatives in the proposed in the aforementioned Resolutions No.
JBC and vice-versa is, thus, misplaced. In the JBC, 1 and 3 be submitted, for approval by the
any member of Congress, whether from the people, at the general elections which shall be
Senate or the House of Representatives, is held on November 14, 1967.
constitutionally empowered to represent the
Two cases were filed against this act of
entire Congress.
Congress: One an is original action for
prohibition, with preliminary injunction by
Ramon A. Gonzales, in L-28196, a Filipino citizen,
From this score stems the conclusion that the
a taxpayer, and a voter. He claims to have
lone representative of Congress is entitled to
instituted case L-28196 as a class unit, for and in
one full vote. This pronouncement effectively
behalf of all citizens, taxpayers, and voters
disallows the scheme of splitting the said vote
similarly situated. Another one is by
into half (1/2), between two representatives of
Philippine Constitution Association(PHILCONSA),
Congress. Not only can this unsanctioned
in L-28224, a corporation duly organized and
practice cause disorder in the voting process, it
existing under the laws of the Philippines, and a
is clearly against the essence of what the
civic, non-profit and non-partisan organization
Constitution authorized. After all, basic and
the objective of which is to uphold the rule of
reasonable is the rule that what cannot be
law in the Philippines and to defend its
legally done directly cannot be done indirectly.
Constitution against erosions or onslaughts
To permit or tolerate the splitting of one vote
from whatever source.
into two or more is clearly a constitutional
circumvention that cannot be countenanced by
the Court. Succinctly put, when the Constitution
ISSUE:
envisioned one member of Congress sitting in
the JBC, it is sensible to presume that this
representation carries with him one full vote.
Main issue: WON THE PROPOSED
AMMENDMENT OF CONGRES IS VALID
(DISMISSED!)
B. GONZALES VS COMMISSION ON ELECTIONS
(1967)(PASSING OF RBH 1,2 AND 3 TO INCREASE
THE HOUSE OF REPRESENTATIVES)
WON The Members of Congress, which
approved the proposed amendments are de
facto officers which renders the approval void.
FACTS:

WON the Approval of congress of the RBH 1,2

On March 16, 1967, the Senate and the House
and 3 is void due to the avaiingl of both
of Representatives passed resolutions No. 1, 2
proposal of amendments and calling of
and 3 – i.e. to increase the seats of the Lower
convention.
House from 120 to 180; to convoke a
Constitutional Convention of 1971; and to
amend the Constitution (Section 16, Article VI)
POLITICAL LAW REVIEW
WON The election, in which proposals for
amendment to the Constitution shall be
submitted for ratification, must be a special
election, not a general election
WON the failure to ratify by the people of the
proposed amendments would render it null and
void.
WON the supreme court has jurisdiction to
annul the amendments passed by the congress.
HELD:
1935 CONSTITUTION
Pursuant to Section 1 of Article XV of the
Constitution, amendments to the Constitution
may be proposed, either by Congress, or by a
convention called by Congress for that purpose.
In either case, the vote of "three-fourths of all
the members of the Senate and of the House
of Representatives voting separately" is
necessary. And, "such amendments shall be
valid as part of" the "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."
In the cases at bar, it is conceded that the R. B.
H. Nos. 1 and 3 have been approved by a vote
of three-fourths of all the members of the
Senate and of the House of Representatives
voting separately. This, notwithstanding, it is
ALLEGED that said resolutions are null and void
because:
FIRST ISSUE: (the approval is valid due to the
de facto doctrine)
There can be no question, therefore, that the
Senate and the House of Representatives
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organized or constituted on December 30, 1961,
were de jure bodies, and that the Members
thereof were de jure officers. Pursuant to the
theory of petitioners herein, upon expiration of
said period of three years, or late in 1963,
Congress became illegal and its Members, or at
least, those of the House of Representatives,
became illegal holder of their respective offices,
and were de facto officers.
Due to the de facto doctrine, even if we
assumed, that the present Members of
Congress are merely de facto officers, it would
not follow that the contested resolutions and
Republic Act No. 4913 are null and void.
In fact, the main reasons for the existence of
the de facto doctrine is that public interest
demands that acts of persons holding, under
color of title, an office created by a valid
statute be, likewise, deemed valid insofar as
the public — as distinguished from the officer
in question — is concerned. otherwise, those
dealing with officers and employees of the
Government would be entitled to demand from
them satisfactory proof of their title to the
positions they hold, before dealing with them,
or before recognizing their authority or obeying
their commands, even if they should act within
the limits of the authority vested in their
respective offices, positions or employments.
One can imagine this great inconvenience,
hardships and evils that would result in the
absence of the de facto doctrine.
As a consequence, the title of a de facto officer
cannot be assailed collaterally. It may not be
contested except directly, by quo warranto
proceedings. Neither may the validity of his acts
be questioned upon the ground that he is
merely a de facto officer.24 And the reasons are
obvious: (1) it would be an indirect inquiry into
the title to the office; and (2) the acts of a de
facto officer, if within the competence of his
office, are valid, insofar as the public is
concerned.
POLITICAL LAW REVIEW Page 5 of 49

Article XV of the Constitution provides:

SECOND ISSUE: (No! It is valid although both

are used each are not to be passed at the same
. . . The Congress in joint session assembled, by
time)
a vote of three-fourths of all the Members of
the Senate and of the House of Representatives
voting separately, may propose amendments to
the term "or" has, oftentimes, been held to
this Constitution or call a contention for that
mean "and," or vice-versa, when the spirit or
purpose. Such amendments shall be valid as
context of the law warrants it.
part of this Constitution when approved by a
majority of the votes cast at an election at
which the amendments are submitted to the
It is, also, noteworthy that R. B. H. Nos. 1 and 3 people for their ratification.
propose amendments to the constitutional
provision on Congress, to be submitted to the
people for ratification on November 14, 1967,
There is nothing in this provision to indicate
whereas R. B. H. No. 2 calls for a convention in
that the "election" therein referred to is a
1971, to consider proposals for amendment to
"special," not a general, election. The
the Constitution, in general. In other words,
circumstance that three previous amendments
the subject-matter of R. B. H. No. 2 is different
to the Constitution had been submitted to the
from that of R B. H. Nos. 1 and 3. Moreover,
people for ratification in special elections
the amendments proposed under R. B. H. Nos.
merely shows that Congress deemed it best to
1 and 3, will be submitted for ratification
do so under the circumstances then obtaining.
several years before those that may be
It does not negate its authority to submit
proposed by the constitutional convention
proposed amendments for ratification in
called in R. B. H. No. 2. Again, although the
general elections.
three (3) resolutions were passed on the same
date, they were taken up and put to a vote
separately, or one after the other. In other
FOURTH ISSUE: (NO! Section 2 of ra 4913 was
words, they were not passed at the same time.
not yet sufficiently complied which cannot
render the ammendment as void)

In any event, we do not find, either in the

Constitution, or in the history thereof anything
It should be noted that the contested
that would negate the authority of different
Resolutions were approved on March 16, 1967,
Congresses to approve the contested
so that, by November 14, 1967, our citizenry
Resolutions, or of the same Congress to pass
shall have had practically eight (8) months to be
the same in, different sessions or different days
informed on the amendments in question. Then
of the same congressional session. And, neither
again, Section 2 of Republic Act No. 4913
has any plausible reason been advanced to
provides:
justify the denial of authority to adopt said
resolutions on the same day.

(1) that "the amendments shall be published

in three consecutive issues of the Official
THIRD ISSUE: (NO! The term election does not
Gazette, at least twenty days prior to the
equate to only special election, in my opinion
election;"
the framers chose the word election to have
flexibility in determining when it would be best
to do so depending on the circumstances.)
(2) that "a printed copy of the proposed
amendments shall be posted in a conspicuous
place in every municipality, city and provincial
POLITICAL LAW REVIEW
office building and in every polling place not
later than October 14, 1967," and that said copy
"shall remain posted therein until after the
election;"
(3) that "at least five copies of said
amendment shall be kept in each polling place,
to be made available for examination by the
qualified electors during election day;"
(4) that "when practicable, copies in the
principal native languages, as may be
determined by the Commission on Elections,
shall be kept in each polling place;"
(5) that "the Commission on Elections shall
make available copies of said amendments in
English, Spanish and, whenever practicable, in
the principal native languages, for free
distributing:" and
(6) that the contested Resolutions "shall be
printed in full" on the back of the ballots which
shall be used on November 14, 1967.
We are not prepared to say that the foregoing
measures are palpably inadequate to comply
with the constitutional requirement that
proposals for amendment be "submitted to
the people for their ratification," and that said
measures are manifestly insufficient, from a
constitutional viewpoint, to inform the people
of the amendment sought to be made.
The system of checks and balances underlying
the judicial power to strike down acts of the
Executive or of Congress transcending the
confines set forth in the fundamental laws is
not in derogation of the principle of separation
of powers, pursuant to which each department
is supreme within its own sphere. The
determination of the conditions under which
the proposed amendments shall be submitted
to the people is concededly a matter which
falls within the legislative sphere. We do not
Page 6 of 49
believe it has been satisfactorily shown that
Congress has exceeded the limits thereof in
enacting Republic Act No. 4913. Presumably, it
could have done something better to enlighten
the people on the subject-matter thereof. But,
then, no law is perfect. No product of human
endeavor is beyond improvement. Otherwise,
no legislation would be constitutional and valid.
Six (6) Members of this Court believe, however,
said Act and R. B. H. Nos. 1 and 3 violate the
spirit of the Constitution.
Inasmuch as there are less than eight (8) votes
in favor of declaring Republic Act 4913 and R. B.
H. Nos. 1 and 3 unconstitutional and invalid, the
petitions in these two (2) cases must be, as they
are hereby, dismiss and the writs therein
prayed for denied, without special
pronouncement as to costs. It is so ordered.
FIFTH ISSUE:
This Court — speaking through one of the
leading members of the Constitutional
Convention and a respected professor of
Constitutional Law, Dr. Jose P. Laurel —
declared that "the judicial department is the
only constitutional organ which can be called
upon to determine the proper allocation of
powers between the several departments and
among the integral or constituent units
thereof."
the power to AMEND the Constitution or to
propose amendments thereto is not included in
the general grant of legislative powers to
Congress.It is part of the inherent powers of
the people — as the repository of sovereignty
in a republican state, such as ours— to make,
and, hence, to amend their own Fundamental
Law. Congress may PROPOSE amendments to
the Constitution merely because the same
explicitly grants such power.12 Hence, when
exercising the same, it is said that Senators and
Members of the House of Representatives act,
not as members of Congress, but as component
elements of a constituent assembly. When
POLITICAL LAW REVIEW
acting as such, the members of Congress derive
their authority from the Constitution, unlike
the people, when performing the same
function,13 for their authority does not
emanate from the Constitution — they are the
very source of all powers of government,
including the Constitution itself .
Since, when proposing, as a constituent
assembly, amendments to the Constitution,
the members of Congress derive their
authority from the Fundamental Law, it follows,
necessarily, that they do not have the final say
on whether or not their acts are within or
beyond constitutional limits. Otherwise, they
could brush aside and set the same at naught,
contrary to the basic tenet that ours is a
government of laws, not of men, and to the
rigid nature of our Constitution. Such rigidity is
stressed by the fact that, the Constitution
expressly confers upon the Supreme Court,14
the power to declare a treaty
unconstitutional,15 despite the eminently
political character of treaty-making power.
TOLENTINO VS COMMISION ON ELECTIONS
(how many election and plebiscite needed to
be held in order for a proposed amendment to
be valid)
FACT:
The 1971 Constitutional Convention came into
being by virtue of two resolutions of the
Congress approved in its capacity as a
constituent assembly convened for the purpose
of calling a convention to propose amendments
to the Constitution. After election of delegates
held on November 10, 1970, the Convention
held its inaugural session on June 1, 1971. In the
morning of September 28, 1970, the Convention
approved Organic Resolution No. 1 which is
entitled as, "A RESOLUTION AMENDING
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SECTION 1 OF ARTICLE V OF THE CONSTITUTION
SO AS TO LOWER THE VOTING AGE TO 18." On
September 30, 1971, the COMELEC "resolved"
to follow the mandate of the Convention, that it
will hold the said plebiscite together with the
senatorial elections on November 8, 1971 .
Petitioner, Arturo Tolentino, filed a petition for
prohibition, its main thrust being that Organic
Resolution No. 1 and the necessary
implementing resolutions subsequently
approved have no force and effect as laws in so
far as they provide for the holding of a
plebiscite co-incident with the senatorial
elections, on the ground that the calling and
holding of such a plebiscite is, by the
Constitution, a power lodged exclusively in
Congress as a legislative body and may not be
exercised by the Convention, and that, under
Article XV Section 1 of the 1935 Constitution,
the proposed amendment in question cannot
be presented to the people for ratification
separately from each and all other
amendments to be drafted and proposed by
the Constitution.
ISSUE:
WON There is any limitation or condition in
Section 1 of Article XV of the Constitution which
is violated by the act of the Convention of
calling for a plebiscite on the sole amendment
contained in Organic Resolution No. 1
HELD: (only number 1 is the applied ruling and
last paragraph of number 2/ Yes! the limit is
there can only be 1 election and plebiscite, in
order for the constitutional amendment to be
valid, this powers is only lodged to the
congress and not to the constitutional
convention)
The Court holds that there is, and it is the
condition and limitation that all the
amendments to be proposed by the same
Convention must be submitted to the people in
POLITICAL LAW REVIEW
a single "election" or plebiscite. It being
indisputable that the amendment now
proposed to be submitted to a plebiscite is only
the first amendment the Convention propose
We hold that the plebiscite being called for the
purpose of submitting the same for ratification
of the people on November 8, 1971 is not
authorized by Section 1 of Article XV of the
Constitution, hence all acts of the Convention
and the respondent Comelec in that direction
are null and void.
We have arrived at this conclusion for the
following reasons:
1. The language of the constitutional
provision aforequoted is sufficiently clear. lt
says distinctly that either Congress sitting as a
constituent assembly or a convention called for
the purpose "may propose amendments to this
Constitution," thus placing no limit as to the
number of amendments that Congress or the
Convention may propose. The same provision
also as definitely provides that "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," thus leaving no room for
doubt as to how many "elections" or
plebiscites may be held to ratify any
amendment or amendments proposed by the
same constituent assembly of Congress or
convention, and the provision unequivocably
says "an election" which means only one.
(2) Very little reflection is needed for anyone
to realize the wisdom and appropriateness of
this provision. As already stated, amending the
Constitution is as serious and important an
undertaking as constitution making itself.
Indeed, any amendment of the Constitution is
as important as the whole of it if only because
the Constitution has to be an integrated and
harmonious instrument, if it is to be viable as
the framework of the government it establishes,
on the one hand, and adequately formidable
and reliable as the succinct but comprehensive
Page 8 of 49
articulation of the rights, liberties, ideology,
social ideals, and national and nationalistic
policies and aspirations of the people, on the
other. lt is inconceivable how a constitution
worthy of any country or people can have any
part which is out of tune with its other parts..
A constitution is the work of the people thru its
drafters assembled by them for the purpose.
Once the original constitution is approved, the
part that the people play in its amendment
becomes harder, for when a whole
constitution is submitted to them, more or less
they can assumed its harmony as an integrated
whole, and they can either accept or reject it in
its entirety. At the very least, they can examine
it before casting their vote and determine for
themselves from a study of the whole
document the merits and demerits of all or any
of its parts and of the document as a whole.
And so also, when an amendment is submitted
to them that is to form part of the existing
constitution, in like fashion they can study with
deliberation the proposed amendment in
relation to the whole existing constitution and
or any of its parts and thereby arrive at an
intelligent judgment as to its acceptability.
This cannot happen in the case of the
amendment in question. Since, the situation
actually before Us is even worse. No one
knows what changes in the fundamental
principles of the constitution the Convention
will be minded to approve. To be more specific,
we do not have any means of foreseeing
whether the right to vote would be of any
significant value at all. Who can say whether or
not later on the Convention may decide to
provide for varying types of voters for each level
of the political units it may divide the country
into. The root of the difficulty in other words,
lies in that the Convention is precisely on the
verge of introducing substantial changes, if not
radical ones, in almost every part and aspect of
the existing social and political order enshrined
in the present Constitution. How can a voter in
the proposed plebiscite intelligently determine
the effect of the reduction of the voting age
upon the different institutions which the
POLITICAL LAW REVIEW
Convention may establish and of which
presently he is not given any idea?
We are certain no one can deny that in order
that a plebiscite for the ratification of an
amendment to the Constitution may be validly
held, it must provide the voter not only
sufficient time but ample basis for an
intelligent appraisal of the nature of the
amendment per se as well as its relation to the
other parts of the Constitution with which it
has to form a harmonious whole. In the context
of the present state of things, where the
Convention has hardly started considering the
merits of hundreds, if not thousands, of
proposals to amend the existing Constitution, to
present to the people any single proposal or a
few of them cannot comply with this
requirement. We are of the opinion that the
present Constitution does not contemplate in
Section 1 of Article XV a plebiscite or "election"
wherein the people are in the dark as to frame
of reference they can base their judgment on.
We reject the rationalization that the present
Constitution is a possible frame of reference, for
the simple reason that intervenors themselves
are stating that the sole purpose of the
proposed amendment is to enable the eighteen
year olds to take part in the election for the
ratification of the Constitution to be drafted by
the Convention. In brief, under the proposed
plebiscite, there can be, in the language of
Justice Sanchez, speaking for the six members
of the Court in Gonzales, supra, "no proper
submission".
the Constitutional Convention of 1971 and the
implementing acts and resolutions of the
Convention, insofar as they provide for the
holding of a plebiscite on November 8, 1971, as
well as the resolution of the respondent
Comelec complying therewith (RR Resolution
No. 695) are hereby declared null and void.
(the constitutional convention came into being
by a call of a joint session of Congress pursuant
to Section I of Article XV of the Constitution)
Page 9 of 49
(The Constitutional Convention of 1971 itself
was born, in a great measure, because of the
pressure brought to bear upon the Congress of
the Philippines by various elements of the
people, the youth in particular, in their incessant
search for a peaceful and orderly means of
bringing about meaningful changes in the
structure and bases of the existing social and
governmental institutions, including the
provisions of the fundamental law related to the
well-being and economic security of the
underprivileged classes of our people as well as
those concerning the preservation and
protection of our natural resources and the
national patrimony, as an alternative to violent
and chaotic ways of achieving such lofty ideals.
In brief, the youth of the Philippines, in general,
like the rest of the people, do not want
confusion and disorder, anarchy and violence;
what they really want are law and order, peace
and orderliness, even in the pursuit of what they
strongly and urgently feel must be done to
change the present order of things in this
Republic of ours.)
Defensor-Santiago v. Commission on Elections,
(GR 127325)(INITIATIVE FOR AMMENDMENT
OF THE CONSTITUTION)
FACTS:
In 1996, Atty. Jesus Delfin a member of the
Movement for People's Initiative, desing to
avail of the system intended to institutionalize
people power; that he and the members of the
Movement and other volunteers intend to
exercise the power to directly propose
amendments to the Constitution granted
under Section 2, Article XVII of the Constitution;
filed with COMELEC a petition to amend
Constitution, to lift term limits of elective
officials, by people’s initiative. Delfin wanted
COMELEC to control and supervise said people’s
initiative the signature-gathering all over the
country. The proposition is: “Do you approve of
lifting the term limits of all elective government
officials, amending for the purpose Sections 4 )
and 7 of Article VI, Section 4 of Article VII, and
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Section 8 of Article 8 of Article X of the 1987
Philippine Constitution?” Said Petition for
Initiative will first be submitted to the people,
and after it is signed by at least 12% total
number of registered voters in the country, it
will be formally filed with the COMELEC.
COMELEC in turn ordered Delfin for publication
of the petition. Petitioners Sen. Roco et al
moved for dismissal of the Delfin Petition on
the ground that it is not the initiatory petition
properly cognizable by the COMELEC.
a. Constitutional provision on people’s
initiative to amend the Constitution can only
be implemented by law to be passed by
Congress. No such law has been passed.b.
Republic Act No. 6735 provides for 3 systems
on initiative but failed to provide any subtitle
on initiative on the Constitution, unlike in the
other modes of initiative. This deliberate
omission indicates matter of people’s initiative
was left to some future law.c. COMELEC has no
power to provide rules and regulations for the
exercise of people’s initiative. Only Congress is
authorized by the Constitution to pass the
implementing law.d. People’s initiative is
limited to amendments to the Constitution,
not to revision thereof. Extending or lifting of
term limits constitutes a revision.e. Congress
nor any government agency has not yet
appropriated funds for people’s initiative.
ISSUE:
WON R.A. NO. 6735 INTENDED TO INCLUDE THE
SYSTEM OF INITIATIVE ON AMENDMENTS TO
THE CONSTITUTION, BUT IS, UNFORTUNATELY,
INADEQUATE TO COVER THAT SYSTEM
HELD: (YES, IT IS INADEQUATE FOR FAILURE TO
ENACT A LAW FOR THE RIGHT OF INITIATIVE IN
AMMENDING THE CONSTITUTION SINCE IT IS
NOT A SELF EXECUTORY PROVISION)
Page 10 of 49
Section 2 of Article XVII of the Constitution
provides:
Sec. 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.
According to the book of Joaquin bernas a
member of the 1986 Constitutional Commission,
stated:
Without implementing legislation Section 2
cannot operate. Thus, although this mode of
amending the Constitution is a mode of
amendment which bypasses congressional
action, in the last analysis it still is dependent
on congressional action.
Bluntly stated, the right of the people to directly
propose amendments to the Constitution
through the system of initiative would remain
entombed in the cold niche of the Constitution
until Congress provides for its implementation.
Stated otherwise, while the Constitution has
recognized or granted that right, the people
cannot exercise it if Congress, for whatever
reason, does not provide for its
implementation.
This system of initiative was originally included
in Section 1 of the draft Article on Amendment
or Revision proposed by the Committee on
Amendments and Transitory Provisions of the
1986 Constitutional Commission in its
Committee Report No. 7 (Proposed Resolution
No. 332). 30 That section reads as follows:
POLITICAL LAW REVIEW
Sec. 1. Any amendment to, or revision of,
this Constitution may be proposed: by the
National Assembly upon a vote of three-fourths
of all its members; by a constitutional
convention; or directly by the people
themselves thru initiative.
A new formulation for the concept of initiative
was later on submitted which alleged that “The
people may, after five years from the date of
the last plebiscite held, directly propose
amendments to this Constitution thru initiative
upon petition of at least ten percent of the
registered voters.”
This completes the blanks appearing in the
original Committee Report No. 7.
The interpellations on Section 2 showed that
the details for carrying out Section 2 are left to
the legislature.
Now, is R.A. No. 6735 in full compliance with
the power and duty of Congress to "provide for
the implementation of the exercise of the
right?"
A careful scrutiny of the Act yields a negative
answer.
First. Contrary to the assertion of public
respondent COMELEC, Section 2 of the Act does
not suggest an initiative on amendments to the
Constitution. The said section reads:
Sec. 2. Statement and Policy. — The power
of the people under a system of initiative and
referendum to directly propose, enact, approve
or reject, in whole or in part, the Constitution,
laws, ordinances, or resolutions passed by any
legislative body upon compliance with the
requirements of this Act is hereby affirmed,
Page 11 of 49
recognized and guaranteed. (Emphasis
supplied).
The inclusion of the word "Constitution"
therein was a delayed afterthought. That word
is neither germane nor relevant to said section,
which exclusively relates to initiative and
referendum on national laws and local laws,
ordinances, and resolutions. That section is
silent as to amendments on the Constitution.
As pointed out earlier, initiative on the
Constitution is confined only to proposals to
AMEND. The people are not accorded the
power to "directly propose, enact, approve, or
reject, in whole or in part, the Constitution"
through the system of initiative. They can only
do so with respect to "laws, ordinances, or
resolutions."
Second. It is true that Section 3 (Definition of
Terms) of the Act defines initiative on
amendments to the Constitution and mentions
it as one of the three systems of initiative, and
that Section 5 (Requirements) restates the
constitutional requirements as to the
percentage of the registered voters who must
submit the proposal. But unlike in the case of
the other systems of initiative, the Act does not
provide for the contents of a petition for
initiative on the Constitution. Section 5,
paragraph (c) requires, among other things,
statement of the proposed law sought to be
enacted, approved or rejected, amended or
repealed, as the case may be. It does not
include, as among the contents of the petition,
the provisions of the Constitution sought to be
amended, in the case of initiative on the
Constitution.The use of the clause "proposed
laws sought to be enacted, approved or
rejected, amended or repealed" only
strengthens the conclusion that Section 2,
quoted earlier, excludes initiative on
amendments to the Constitution.
Third. While the Act provides subtitles for
National Initiative and Referendum (Subtitle II)
and for Local Initiative and Referendum
(Subtitle III), no subtitle is provided for
POLITICAL LAW REVIEW
initiative on the Constitution. This conspicuous
silence as to the latter simply means that the
main thrust of the Act is initiative and
referendum on national and local laws. If
Congress intended R.A. No. 6735 to fully
provide for the implementation of the initiative
on amendments to the Constitution, it could
have provided for a subtitle therefor,
considering that in the order of things, the
primacy of interest, or hierarchy of values, the
right of the people to directly propose
amendments to the Constitution is far more
important than the initiative on national and
local laws.
We cannot accept the argument that the
initiative on amendments to the Constitution is
subsumed under the subtitle on National
Initiative and Referendum because it is national
in scope. Our reading of Subtitle II (National
Initiative and Referendum) and Subtitle III
(Local Initiative and Referendum) leaves no
room for doubt that the classification is not
based on the scope of the initiative involved,
but on its nature and character. It is "national
initiative," if what is proposed to be adopted
or enacted is a national law, or a law which
only Congress can pass. It is "local initiative" if
what is proposed to be adopted or enacted is a
law, ordinance, or resolution which only the
legislative bodies of the governments of the
autonomous regions, provinces, cities,
municipalities, and barangays can pass.
As to initiative on amendments to the
Constitution, R.A. No. 6735, in all of its
twenty-three sections, merely (a) mentions,
the word "Constitution" in Section 2; (b)
defines "initiative on the Constitution" and
includes it in the enumeration of the three
systems of initiative in Section 3; (c) speaks of
"plebiscite" as the process by which the
proposition in an initiative on the Constitution
may be approved or rejected by the people; (d)
reiterates the constitutional requirements as
to the number of voters who should sign the
petition; and (e) provides for the date of
effectivity of the approved proposition.
Page 12 of 49
There was, therefore, an obvious downgrading
of the more important or the paramount system
of initiative. RA. No. 6735 thus delivered a
humiliating blow to the system of initiative on
amendments to the Constitution by merely
paying it a reluctant lip service.
The foregoing brings us to the conclusion that
R.A. No. 6735 is incomplete, inadequate, or
wanting in essential terms and conditions
insofar as initiative on amendments to the
Constitution is concerned. Its lacunae on this
substantive matter are fatal and cannot be
cured by "empowering" the COMELEC "to
promulgate such rules and regulations as may
be necessary to carry out the purposes of [the]
Act. 58
The rule is that what has been delegated,
cannot be delegated or as expressed in a Latin
maxim: potestas delegata non delegari potest.
59 The recognized exceptions to the rule are as
follows:
(1) Delegation of tariff powers to the
President under Section 28(2) of Article VI of
the Constitution;
(2) Delegation of emergency powers to the
President under Section 23(2) of Article VI of
the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative
body exercising quasi-judicial functions, to
promulgate rules and regulations is a form of
delegation of legislative authority under no. 5
POLITICAL LAW REVIEW
above. However, in every case of permissible
delegation, there must be a showing that the
delegation itself is valid. It is valid only if the
law (a) is complete in itself, setting forth
therein the policy to be executed, carried out,
or implemented by the delegate; and (b) fixes
a standard — the limits of which are
sufficiently determinate and determinable —
to which the delegate must conform in the
performance of his functions. 61 A sufficient
standard is one which defines legislative policy,
marks its limits, maps out its boundaries and
specifies the public agency to apply it. It
indicates the circumstances under which the
legislative command is to be effected. 62
Insofar as initiative to propose amendments to
the Constitution is concerned, R.A. No. 6735
miserably failed to satisfy both requirements in
subordinate legislation. The delegation of the
power to the COMELEC is then invalid.
LAMBINO v. COMMISION ON ELECTIONS (rule
in signatures in initiatives petition and
limitation of initiative to proposal only of
amendments and does not include revisions)
FACTS:
On 15 February 2006, petitioners in G.R. No.
174153, namely Raul L. Lambino and Erico B.
Aumentado ("Lambino Group"), with other
groups1 and individuals, commenced gathering
signatures for an initiative petition to change
the 1987 Constitution. On 25 August 2006, the
Lambino Group filed a petition with the
COMELEC to hold a plebiscite that will ratify
their initiative petition under Section 5(b) and
(c)2 and Section 73 of Republic Act No. 6735 or
the Initiative and Referendum Act ("RA 6735").
The Lambino Group alleged that their petition
had the support of 6,327,952 individuals
constituting at least twelve per centum (12%)
of all registered voters, with each legislative
district represented by at least three per
Page 13 of 49
centum (3%) of its registered voters. The
Lambino Group also claimed that COMELEC
election registrars had verified the signatures of
the 6.3 million individuals.
The Lambino Group's initiative petition
changes the 1987 Constitution by modifying
Sections 1-7 of Article VI (Legislative
Department)4 and Sections 1-4 of Article VII
(Executive Department)5 and by adding Article
XVIII entitled "Transitory Provisions."6 These
proposed changes will shift the present
Bicameral-Presidential system to a
Unicameral-Parliamentary form of government.
The Lambino Group prayed that after due
publication of their petition, the COMELEC
should submit the following proposition in a
plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF
ARTICLES VI AND VII OF THE 1987
CONSTITUTION, CHANGING THE FORM OF
GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A
UNICAMERAL-PARLIAMENTARY SYSTEM, AND
PROVIDING ARTICLE XVIII AS TRANSITORY
PROVISIONS FOR THE ORDERLY SHIFT FROM
ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an
Amended Petition with the COMELEC indicating
modifications in the proposed Article XVIII
(Transitory Provisions) of their initiative.
ISSUE:
WON the Lambino Group's initiative petition
complies with Section 2, Article XVII of the
Constitution on amendments to the
Constitution through a people's initiative;
WON the initiative petition is an amendment or
revision;
POLITICAL LAW REVIEW Page 14 of 49

HELD:(NO, there is failure to show the full text

of the proposed petition what was only shown
The essence of amendments "directly
to the people was signature sheets and even if
proposed by the people through initiative
there was full text only 100,000 out of 6.3m
upon a petition" is that the entire proposal on
knew of such text/ the initiative is in the
its face is a petition by the people. This means
nature of revision which the people does not
two essential elements must be present. First,
have power since, they can only propose
the people must author and thus sign the
amendments.)
entire proposal. No agent or representative
can sign on their behalf. Second, as an
initiative upon a petition, the proposal must be
The Lambino Group miserably failed to comply
embodied in a petition.
with the basic requirements of the
Constitution for conducting a people's
initiative. Thus, there is even no need to revisit
These essential elements are present only if
Santiago, as the present petition warrants
the full text of the proposed amendments is
dismissal based alone on the Lambino Group's
first shown to the people who express their
glaring failure to comply with the basic
assent by signing such complete proposal in a
requirements of the Constitution.
petition. Thus, an amendment is "directly
proposed by the people through initiative
upon a petition" only if the people sign on a
FIRST, The Initiative Petition Does Not Comply
petition that contains the full text of the
with Section 2, Article XVII of the Constitution
proposed amendments.
on Direct Proposal by the People

The full text of the proposed amendments may

Section 2, Article XVII of the Constitution is the
governing constitutional provision that allows a
people's initiative to propose amendments to
the Constitution. This section states:
Sec. 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.
the framers of the Constitution intended that
the "draft of the proposed constitutional
amendment" should be "ready and shown" to
the people "before" they sign such proposal.
The framers plainly stated that "before they
sign there is already a draft shown to them."
The framers also "envisioned" that the people
should sign on the proposal itself because the
proponents must "prepare that proposal and
pass it around for signature."
be either written on the face of the petition, or
attached to it. If so attached, the petition must
state the fact of such attachment. This is an
assurance that every one of the several
millions of signatories to the petition had seen
the full text of the proposed amendments
before signing. Otherwise, it is physically
impossible, given the time constraint, to prove
that every one of the millions of signatories
had seen the full text of the proposed
amendments before signing.
The framers of the Constitution directly
borrowed the concept of people's initiative
from the United States where various State
constitutions incorporate an initiative clause.
The rationale for this requirement has been
repeatedly explained in several decisions of
various courts. Thus, in Capezzuto v. State Ballot
Commission, the Supreme Court of
Massachusetts, affirmed by the First Circuit
Court of Appeals, declared:
POLITICAL LAW REVIEW
[A] signature requirement would be
meaningless if the person supplying the
signature has not first seen what it is that he or
she is signing. Further, and more importantly,
loose interpretation of the subscription
requirement can pose a significant potential for
fraud. A person permitted to describe orally
the contents of an initiative petition to a
potential signer, without the signer having
actually examined the petition, could easily
mislead the signer by, for example, omitting,
downplaying, or even flatly misrepresenting,
portions of the petition that might not be to
the signer's liking.
Likewise, in Kerr v. Bradbury,18 the Court of
Appeals of Oregon explained:
The purposes of "full text" provisions that apply
to amendments by initiative commonly are
described in similar terms. x x x (The purpose of
the full text requirement is to provide
sufficient information so that registered voters
can intelligently evaluate whether to sign the
initiative petition."); x x x (publication of full
text of amended constitutional provision
required because it is "essential for the elector
to have x x x the section which is proposed to
be added to or subtracted from. If he is to vote
intelligently, he must have this knowledge.
Moreover, "an initiative signer must be
informed at the time of signing of the nature
and effect of that which is proposed" and
failure to do so is "deceptive and misleading"
which renders the initiative void.
Section 2, Article XVII of the Constitution does
not expressly state that the petition must set
forth the full text of the proposed amendments.
However, the deliberations of the framers of
our Constitution clearly show that the framers
intended to adopt the relevant American
jurisprudence on people's initiative. In
particular, the deliberations of the
Constitutional Commission explicitly reveal
Page 15 of 49
that the framers intended that the people
must first see the full text of the proposed
amendments before they sign, and that the
people must sign on a petition containing such
full text.
Thus, there is no presumption that the
proponents observed the constitutional
requirements in gathering the signatures. The
proponents bear the burden of proving that
they complied with the constitutional
requirements in gathering the signatures - that
the petition contained, or incorporated by
attachment, the full text of the proposed
amendments.
The Lambino Group did not attach to their
present petition with this Court a copy of the
paper that the people signed as their initiative
petition. The Lambino Group submitted to this
Court a copy of a signature sheet2 after the oral
arguments of 26 September 2006 when they
filed their Memorandum on 11 October 2006.
The signature sheet with this Court during the
oral arguments was the signature sheet
attached to the opposition in intervention
filed on 7 September 2006 by intervenor Atty.
Pete Quirino-Quadra.
The signature sheet attached to Atty. Quadra's
opposition and the signature sheet attached to
the Lambino Group's Memorandum are the
same
There is not a single word, phrase, or sentence
of text of the Lambino Group's proposed
changes in the signature sheet. Neither does
the signature sheet state that the text of the
proposed changes is attached to it. Petitioner
Atty. Raul Lambino admitted this during the
oral arguments before this Court on 26
September 2006.
POLITICAL LAW REVIEW
The signature sheet merely asks a question
whether the people approve a shift from the
Bicameral-Presidential to the
Unicameral-Parliamentary system of
government. The signature sheet does not
show to the people the draft of the proposed
changes before they are asked to sign the
signature sheet. Clearly, the signature sheet is
not the "petition" that the framers of the
Constitution envisioned when they formulated
the initiative clause in Section 2, Article XVII of
the Constitution.
Now, The Lambino Group cites as authority
Corpus Juris Secundum, stating that "a signer
who did not read the measure attached to a
referendum petition cannot question his
signature on the ground that he did not
understand the nature of the act."
Indeed, it is basic in American jurisprudence
that the proposed amendment must be
incorporated with, or attached to, the initiative
petition signed by the people. In the present
initiative, the Lambino Group's proposed
changes were not incorporated with, or
attached to, the signature sheets. The Lambino
Group's citation of Corpus Juris Secundum pulls
the rug from under their feet.
During the oral arguments, Atty. Lambino
expressly admitted that they printed only
100,000 copies of the draft petition they filed
more than six months later with the COMELEC.
Atty. Lambino added that he also asked other
supporters to print additional copies of the draft
petition but he could not state with certainty
how many additional copies the other
supporters printed. Atty. Lambino could only
assure this Court of the printing of 100,000
copies because he himself caused the printing
of these 100,000 copies.
This admission binds the Lambino Group and
establishes beyond any doubt that the
Lambino Group failed to show the full text of
Page 16 of 49
the proposed changes to the great majority of
the people who signed the signature sheets.
Thus, of the 6.3 million signatories, only
100,000 signatories could have received with
certainty one copy each of the petition,
assuming a 100 percent distribution with no
wastage. If Atty. Lambino and company
attached one copy of the petition to each
signature sheet, only 100,000 signature sheets
could have circulated with the petition. Each
signature sheet contains space for ten
signatures. Assuming ten people signed each of
these 100,000 signature sheets with the
attached petition, the maximum number of
people who saw the petition before they
signed the signature sheets would not exceed
1,000,000.
With only 100,000 printed copies of the petition,
it would be physically impossible for all or a
great majority of the 6.3 million signatories to
have seen the petition before they signed the
signature sheets. The inescapable conclusion is
that the Lambino Group failed to show to the
6.3 million signatories the full text of the
proposed changes. If ever, not more than one
million signatories saw the petition before they
signed the signature sheets.
An initiative that gathers signatures from the
people without first showing to the people the
full text of the proposed amendments is most
likely a deception, and can operate as a
gigantic fraud on the people. That is why the
Constitution requires that an initiative must be
"directly proposed by the people x x x in a
petition" - meaning that the people must sign
on a petition that contains the full text of the
proposed amendments. On so vital an issue as
amending the nation's fundamental law, the
writing of the text of the proposed
amendments cannot be hidden from the
people under a general or special power of
attorney to unnamed, faceless, and unelected
individuals.
POLITICAL LAW REVIEW
The Constitution entrusts to the people the
power to directly propose amendments to the
Constitution. This Court trusts the wisdom of
the people even if the members of this Court do
not personally know the people who sign the
petition. However, this trust emanates from a
fundamental assumption: the full text of the
proposed amendment is first shown to the
people before they sign the petition, not after
they have signed the petition.
In short, the Lambino Group's initiative is void
and unconstitutional because it dismally fails
to comply with the requirement of Section 2,
Article XVII of the Constitution that the
initiative must be "directly proposed by the
people through initiative upon a petition."
SECOND, The Initiative Violates Section 2,
Article XVII of the Constitution Disallowing
Revision through Initiatives.
Article XVII of the Constitution speaks of three
modes of amending the Constitution. The first
mode is through Congress upon three-fourths
vote of all its Members. The second mode is
through a constitutional convention. The third
mode is through a people's initiative.
Section 1 of Article XVII, referring to the first
and second modes, applies to "[A]ny
amendment to, or revision of, this
Constitution." In contrast, Section 2 of Article
XVII, referring to the third mode, applies only
to "[A]mendments to this Constitution." Hence,
there is a deliberate distinction between the
two
The framers of the Constitution intended, and
wrote, a clear distinction between
"amendment" and "revision" of the
Constitution. The framers intended, and wrote,
that only Congress or a constitutional
convention may propose revisions to the
Constitution. The framers intended, and wrote,
that a people's initiative may propose only
Page 17 of 49
amendments to the Constitution. Where the
intent and language of the Constitution clearly
withhold from the people the power to
propose revisions to the Constitution, the
people cannot propose revisions even as they
are empowered to propose amendments.
This has been the consistent ruling of state
supreme courts in the United States. Thus, in
McFadden v. Jordan,32 the Supreme Court of
California ruled:
The initiative power reserved by the people by
amendment to the Constitution x x x applies
only to the proposing and the adopting or
rejecting of 'laws and amendments to the
Constitution' and does not purport to extend
to a constitutional revision. x x x x It is thus
clear that a revision of the Constitution may be
accomplished only through ratification by the
people of a revised constitution proposed by a
convention called for that purpose as outlined
hereinabove.
Similarly, in this jurisdiction there can be no
dispute that a people's initiative can only
propose amendments to the Constitution since
the Constitution itself limits initiatives to
amendments. There can be no deviation from
the constitutionally prescribed modes of
revising the Constitution. A popular clamor,
even one backed by 6.3 million signatures,
cannot justify a deviation from the specific
modes prescribed in the Constitution itself.
As the Supreme Court of Oklahoma ruled in In
re Initiative Petition No. 364:34
It is a fundamental principle that a constitution
can only be revised or amended in the manner
prescribed by the instrument itself, and that
any attempt to revise a constitution in a
manner other than the one provided in the
instrument is almost invariably treated as
extra-constitutional and revolutionary. x x x x
"While it is universally conceded that the people
POLITICAL LAW REVIEW
are sovereign and that they have power to
adopt a constitution and to change their own
work at will, they must, in doing so, act in an
orderly manner and according to the settled
principles of constitutional law. And where the
people, in adopting a constitution, have
prescribed the method by which the people
may alter or amend it, an attempt to change the
fundamental law in violation of the
self-imposed restrictions, is unconstitutional." x
x x x (Emphasis supplied)
Courts have long recognized the distinction
between an amendment and a revision of a
constitution. One of the earliest cases that
recognized the distinction described the
fundamental difference in this manner:
Revision broadly implies a change that alters a
basic principle in the constitution, like altering
the principle of separation of powers or the
system of checks-and-balances. There is also
revision if the change alters the substantial
entirety of the constitution, as when the
change affects substantial provisions of the
constitution. On the other hand, amendment
broadly refers to a change that adds, reduces,
or deletes without altering the basic principle
involved. Revision generally affects several
provisions of the constitution, while
amendment generally affects only the specific
provision being amended.
In California where the initiative clause allows
amendments but not revisions to the
constitution just like in our Constitution, courts
have developed a two-part test: the
quantitative test and the qualitative test. The
quantitative test asks whether the proposed
change is "so extensive in its provisions as to
change directly the 'substantial entirety' of the
constitution by the deletion or alteration of
numerous existing provisions."36 The court
examines only the number of provisions
affected and does not consider the degree of
the change.
Page 18 of 49
The qualitative test inquires into the
qualitative effects of the proposed change in
the constitution. The main inquiry is whether
the change will "accomplish such far reaching
changes in the nature of our basic
governmental plan as to amount to a
revision."37 Whether there is an alteration in
the structure of government is a proper subject
of inquiry.
Under both the quantitative and qualitative
tests, the Lambino Group's initiative is a
revision and not merely an amendment.
Quantitatively, the Lambino Group's proposed
changes overhaul two articles - Article VI on
the Legislature and Article VII on the Executive
- affecting a total of 105 provisions in the
entire Constitution.40 Qualitatively, the
proposed changes alter substantially the basic
plan of government, from presidential to
parliamentary, and from a bicameral to a
unicameral legislature.
A change in the structure of government is a
revision of the Constitution, as when the three
great co-equal branches of government in the
present Constitution are reduced into two. This
alters the separation of powers in the
Constitution.
This drives home the point that the people's
initiative is not meant for revisions of the
Constitution but only for amendments. A shift
from the present Bicameral-Presidential to a
Unicameral-Parliamentary system requires
harmonizing several provisions in many articles
of the Constitution. Revision of the Constitution
through a people's initiative will only result in
gross absurdities in the Constitution.
In sum, there is no doubt whatsoever that the
Lambino Group's initiative is a revision and not
an amendment. Thus, the present initiative is
void and unconstitutional because it violates
Section 2, Article XVII of the Constitution
limiting the scope of a people's initiative to
"[A]mendments to this Constitution."
POLITICAL LAW REVIEW Page 19 of 49

raised by the plaintiffs is a political question

which properly pertains to the legislative or
executive branches of Government.

OPOSA VS FACTORAN(timber license

On 18 July 1991, respondent Judge issued an
agreement and the right to a balance and
order granting the aforementioned motion to
healthful ecology and right of non-impairment
dismiss. 7 In the said order, not only was the
of contract)
defendant's claim — that the complaint states
no cause of action against him and that it raises
a political question — sustained, the
FACTS: respondent Judge further ruled that the
granting of the relief prayed for would result in
the impairment of contracts which is prohibited
The principal plaintiffs therein, now the by the fundamental law of the land.
principal petitioners, are all minors duly
represented and joined by their respective
parents. Impleaded as an additional plaintiff is ISSUE:
the Philippine Ecological Network, Inc. (PENI), a
domestic, non-stock and non-profit corporation
organized for the purpose of, inter alia,
WON the plaintiffs have a cause of action.
engaging in concerted action geared for the
protection of our environment and natural
resources. The original defendant was the
WON complaint raises political issue.
Honorable Fulgencio S. Factoran, Jr., then
Secretary of the Department of Environment
and Natural Resources (DENR). His substitution
in this petition by the new Secretary, the WON there is an impairment of contracts
Honorable Angel C. Alcala, was subsequently
ordered upon proper motion by the petitioners.
The complaint was instituted as a taxpayers' HELD:
class suit 3 and alleges that the plaintiffs "are
all citizens of the Republic of the Philippines,
taxpayers, and entitled to the full benefit, use FIRST ISSUE:(Yes! The plaintiff has a cause of
and enjoyment of the natural resource action based on the legal right to a balance and
treasure that is the country's virgin tropical healthful ecology)
forests." The same was filed for themselves
and others who are equally concerned about
the preservation of said resource but are "so
A cause of action is defined as:
numerous that it is impracticable to bring them
all before the Court." The minors further
asseverate that they "represent their
generation as well as generations yet unborn. . . . an act or omission of one party in violation
Petitioners prayed that the TLA is canceled and of the legal right or rights of the other; and its
cease to issue new TLA essential elements are legal right of the plaintiff,
correlative obligation of the defendant, and act
or omission of the defendant in violation of said
legal right
On 22 June 1990, the original defendant,
Secretary Factoran, Jr., filed a Motion to
Dismiss the complaint based on two (2)
grounds, namely: (1) the plaintiffs have no We do not agree with the trial court's
cause of action against him and (2) the issue conclusions that the plaintiffs failed to allege
POLITICAL LAW REVIEW
with sufficient definiteness a specific legal right
involved or a specific legal wrong committed,
and that the complaint is replete with vague
assumptions and conclusions based on
unverified data. A reading of the complaint
itself belies these conclusions.
The complaint focuses on one specific
fundamental legal right — the right to a
balanced and healthful ecology which, for the
first time in our nation's constitutional history,
is solemnly incorporated in the fundamental
law. Section 16, Article II of the 1987
Constitution explicitly provides:
Sec. 16. The State shall protect and advance
the right of the people to a balanced and
healthful ecology in accord with the rhythm
and harmony of nature.
This right unites with the right to health which is
provided for in the preceding section of the
same article:
Sec. 15. The State shall protect and promote
the right to health of the people and instill
health consciousness among them.
While the right to a balanced and healthful
ecology is to be found under the Declaration of
Principles and State Policies and not under the
Bill of Rights, it does not follow that it is less
important than any of the civil and political
rights enumerated in the latter. Such a right
belongs to a different category of rights
altogether for it concerns nothing less than
self-preservation and self-perpetuation —
aptly and fittingly stressed by the petitioners —
the advancement of which may even be said to
predate all governments and constitutions. As a
matter of fact, these basic rights need not even
be written in the Constitution for they are
assumed to exist from the inception of
humankind. If they are now explicitly
mentioned in the fundamental charter, it is
because of the well-founded fear of its framers
Page 20 of 49
that unless the rights to a balanced and
healthful ecology and to health are mandated
as state policies by the Constitution itself,
thereby highlighting their continuing
importance and imposing upon the state a
solemn obligation to preserve the first and
protect and advance the second, the day
would not be too far when all else would be
lost not only for the present generation, but
also for those to come — generations which
stand to inherit nothing but parched earth
incapable of sustaining life.
The right to a balanced and healthful ecology
carries with it the correlative duty to refrain
from impairing the environment.
President Corazon C. Aquino promulgated on 10
June 1987 E.O. No. 192, 14 Section 4 of which
expressly mandates that the Department of
Environment and Natural Resources "shall be
the primary government agency responsible
for the conservation, management,
development and proper use of the country's
environment and natural resources, specifically
forest and grazing lands, mineral, resources,
including those in reservation and watershed
areas, and lands of the public domain, as well
as the licensing and regulation of all natural
resources as may be provided for by law in
order to ensure equitable sharing of the
benefits derived therefrom for the welfare of
the present and future generations of
Filipinos."
Both E.O. NO. 192 and the Administrative Code
of 1987 have set the objectives which will serve
as the bases for policy formulation, and have
defined the powers and functions of the DENR.
It may, however, be recalled that even before
the ratification of the 1987 Constitution, specific
statutes already paid special attention to the
"environmental right" of the present and future
generations. On 6 June 1977, P.D. No. 1151
(Philippine Environmental Policy) and P.D. No.
1152 (Philippine Environment Code) were
POLITICAL LAW REVIEW
issued. The former "declared a continuing
policy of the State (a) to create, develop,
maintain and improve conditions under which
man and nature can thrive in productive and
enjoyable harmony with each other, (b) to
fulfill the social, economic and other
requirements of present and future
generations of Filipinos, and (c) to insure the
attainment of an environmental quality that is
conducive to a life of dignity and well-being."
16 As its goal, it speaks of the "responsibilities
of each generation as trustee and guardian of
the environment for succeeding generations."
17 The latter statute, on the other hand, gave
flesh to the said policy.
Thus, the right of the petitioners (and all those
they represent) to a balanced and healthful
ecology is as clear as the DENR's duty — under
its mandate and by virtue of its powers and
functions under E.O. No. 192 and the
Administrative Code of 1987 — to protect and
advance the said right.
SECOND ISSUE: (YES! It is a political question,
however the court is not precluded from
reviewing such cases, due to the new provision
vests in the judiciary, and particularly the
Supreme Court, the power to rule upon even
the wisdom of the decisions of the executive
and the legislature and to declare their acts
invalid for lack or excess of jurisdiction because
tainted with grave abuse of discretion. This
invokes an expanded jurisdiction which
includes political questions)
Civil Case No. 90-777 raises a political question.
Policy formulation or determination by the
executive or legislative branches of
Government is not squarely put in issue. What
is principally involved is the enforcement of a
right vis-a-vis policies already formulated and
expressed in legislation. It must, nonetheless,
be emphasized that the political question
doctrine is no longer, the insurmountable
obstacle to the exercise of judicial power or
the impenetrable shield that protects
executive and legislative actions from judicial
Page 21 of 49
inquiry or review. The second paragraph of
section 1, Article VIII of the Constitution states
that:
Judicial power includes the duty of the courts
of justice to settle actual controversies
involving rights which are legally demandable
and enforceable, and to determine whether or
not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government.
Commenting on this provision in his book,
Philippine Political Law, 22 Mr. Justice Isagani A.
Cruz, a distinguished member of this Court,
says:
The first part of the authority represents the
traditional concept of judicial power, involving
the settlement of conflicting rights as
conferred as law. The second part of the
authority represents a broadening of judicial
power to enable the courts of justice to review
what was before forbidden territory, to wit,
the discretion of the political departments of
the government.
As worded, the new provision vests in the
judiciary, and particularly the Supreme Court,
the power to rule upon even the wisdom of the
decisions of the executive and the legislature
and to declare their acts invalid for lack or
excess of jurisdiction because tainted with
grave abuse of discretion. The catch, of course,
is the meaning of "grave abuse of discretion,"
which is a very elastic phrase that can expand
or contract according to the disposition of the
judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now
speaking for this Court, noted:
In the case now before us, the jurisdictional
objection becomes even less tenable and
POLITICAL LAW REVIEW
decisive. The reason is that, even if we were to
assume that the issue presented before us was
political in nature, we would still not be
precluded from revolving it under the
expanded jurisdiction conferred upon us that
now covers, in proper cases, even the political
question. ARTICLE 8 SECTION 1 OF THE 1987
CONSTITUTION PROVIDES:
Section 1. The judicial power shall be vested in
one Supreme Court and in such lower courts as
may be established by law. Judicial power
includes the duty of the courts of justice to
settle actual controversies involving rights
which are legally demandable and enforceable,
and to determine whether or not there has
been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
THIRD ISSUE:(NO! There is no impairment of
contracts since the timber license agreement is
not a contract but a license which can be
revoked by the executive department if
necessary and the non impairment clause
cannot apply in this since the granting of a
license is a privilege under the discretion of the
state)
We are not persuaded at all; on the contrary,
We are amazed, if not shocked, by such a
sweeping pronouncement. In the first place, the
respondent Secretary did not, for obvious
reasons, even invoke in his motion to dismiss
the non-impairment clause. If he had done so,
he would have acted with utmost infidelity to
the Government by providing undue and
unwarranted benefits and advantages to the
timber license holders because he would have
forever bound the Government to strictly
respect the said licenses according to their
terms and conditions regardless of changes in
policy and the demands of public interest and
welfare. He was aware that as correctly pointed
out by the petitioners, into every timber license
must be read Section 20 of the Forestry Reform
Code (P.D. No. 705) which provides:
Page 22 of 49
. . . Provided, That when the national interest
so requires, the President may amend, modify,
replace or rescind any contract, concession,
permit, licenses or any other form of privilege
granted herein . . .
Needless to say, all licenses may thus be
revoked or rescinded by executive action. It is
not a contract, property or a property right
protested by the due process clause of the
Constitution. In Tan vs. Director of Forestry, 25
this Court held:
. . . A timber license is an instrument by which
the State regulates the utilization and
disposition of forest resources to the end that
public welfare is promoted. A timber license is
not a contract within the purview of the due
process clause; it is only a license or privilege,
which can be validly withdrawn whenever
dictated by public interest or public welfare as
in this case.
A license is merely a permit or privilege to do
what otherwise would be unlawful, and is not
a contract between the authority, federal,
state, or municipal, granting it and the person
to whom it is granted; neither is it property or
a property right, nor does it create a vested
right; nor is it taxation (37 C.J. 168). Thus, this
Court held that the granting of license does not
create irrevocable rights, neither is it property
or property rights (People vs. Ong Tin, 54 O.G.
7576).
We reiterated this pronouncement in Felipe
Ysmael, Jr. & Co., Inc. vs. Deputy Executive
Secretary: 26
. . . Timber licenses, permits and license
agreements are the principal instruments by
which the State regulates the utilization and
disposition of forest resources to the end that
public welfare is promoted. And it can hardly be
gainsaid that they merely evidence a privilege
granted by the State to qualified entities, and
POLITICAL LAW REVIEW
do not vest in the latter a permanent or
irrevocable right to the particular concession
area and the forest products therein. They may
be validly amended, modified, replaced or
rescinded by the Chief Executive when national
interests so require. Thus, they are not deemed
contracts within the purview of the due process
of law clause [See Sections 3(ee) and 20 of Pres.
Decree No. 705, as amended. Also, Tan v.
Director of Forestry, G.R. No. L-24548, October
27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the
non-impairment clause, cannot be invoked.
MANILA PRINCE HOTEL VS GSIS
FACTS:
Government Service Insurance System (GSIS),
pursuant to the privatization program of the
Philippine Government, decided to sell through
public bidding 30% to 51% of the issued and
outstanding shares of respondent MHC. The
winning bidder, or the eventual strategic
partner, is to provide management expertise
and/or an international marketing/reservation
system, and financial support to strengthen the
profitability and performance of the Manila
Hotel. only two (2) bidders participated:
petitioner 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, and 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. Pending the declaration of Renong
Berhard as the winning bidder/strategic
partner and the execution of the necessary
contracts, petitioner in a letter to respondent
GSIS dated 28 September 1995 matched the
bid price of P44.00 per share tendered by
Renong Berhad. In a subsequent letter dated 10
October 1995 petitioner sent a managers check
issued by Philtrust Bank for Thirty-three Million
Pesos (P33,000,000.00) as Bid Security to match
Page 23 of 49
the bid of the Malaysian Group, Messrs. Renong
Berhad which respondent GSIS refused to
accept. with the apprehension that respondent
GSIS has disregarded the tender of the
matching bid and that the sale of 51% of the
MHC may be hastened by respondent GSIS and
consummated with Renong Berhad, petitioner
came to this Court on prohibition and
mandamus. On 18 October 1995 the Court
issued a temporary restraining order enjoining
respondents from perfecting and
consummating the sale to the Malaysian firm.
On 18 October 1995 the Court issued a
temporary restraining order enjoining
respondents from perfecting and consummating
the sale to the Malaysian firm.
On 10 September 1996 the instant case was
accepted by the Court En Banc after it was
referred to it by the First Division. The case was
then set for oral arguments with former Chief
Justice Enrique M. Fernando and Fr. Joaquin G.
Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second
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. 6 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
POLITICAL LAW REVIEW
national economy, to which Sec. 10, second par.,
Art. XII, 1987 Constitution, applies. 7
It is also the thesis of petitioner that since
Manila Hotel is part of the national patrimony
and its business also unquestionably part of the
national economy petitioner should be
preferred after it has matched the bid offer of
the Malaysian firm. For the bidding rules
mandate that if for any reason, the Highest
Bidder cannot be awarded the Block of Shares,
GSIS may offer this to the other Qualified
Bidders that have validly submitted bids
provided that these Qualified Bidders are willing
to match the highest bid in terms of price per
share. 8
Respondents except. They maintain that: First,
Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle
and policy since it is not a self-executing
provision and requires implementing
legislation(s) . . . Thus, for the said provision to
Operate, there must be existing laws "to lay
down conditions under which business may be
done.
ISSUE:
WON sec 10 second par. Art XII of 1987
constitution is a self executing provision.
WON manila hotel forms part of the national
patrimony.
WON the submission of matching bid is
premature.
WON there was a grave abuse of discretion on
the part of the respondent in refusing the
matching bid of the petitioner.
Page 24 of 49
HELD:
FIRST ISSUE: (YES! IT IS A SELF EXECUTING
PROVISION, THE PROVISION IS A MANDATORY
POSITIVE COMMAND WHICH IS COMPLETE IN
ITSELF(LAST PAR))
In self-executing constitutional provisions, the
legislature may still enact legislation to
facilitate the exercise of powers directly
granted by the constitution, further the
operation of such a provision, prescribe a
practice to be used for its enforcement,
provide a convenient remedy for the
protection of the rights secured or the
determination thereof, or place reasonable
safeguards around the exercise of the right.
The mere fact that legislation may supplement
and add to or prescribe a penalty for the
violation of a self-executing constitutional
provision does not render such a provision
ineffective in the absence of such legislation.
The omission from a constitution of any express
provision for a remedy for enforcing a right or
liability is not necessarily an indication that it
was not intended to be self-executing. The rule
is that a self-executing provision of the
constitution does not necessarily exhaust
legislative power on the subject, but any
legislation must be in harmony with the
constitution, further the exercise of
constitutional right and make it more available.
17 Subsequent legislation however does not
necessarily mean that the subject
constitutional provision is not, by itself, fully
enforceable.
Respondents also argue that the
non-self-executing nature of Sec. 10, second
par., of Art. XII is implied from the tenor of the
first and third paragraphs of the same section
which undoubtedly are not self-executing. 18
The argument is flawed. If the first and third
paragraphs are not self-executing because
Congress is still to enact measures to
encourage the formation and operation of
enterprises fully owned by Filipinos, as in the
first paragraph, and the State still needs
POLITICAL LAW REVIEW
legislation to regulate and exercise authority
over foreign investments within its national
jurisdiction, as in the third paragraph, then a
fortiori, by the same logic, the second
paragraph can only be self-executing as it does
not by its language require any legislation in
order to give preference to qualified Filipinos
in the grant of rights, privileges and
concessions covering the national economy
and patrimony. A constitutional provision may
be self-executing in one part and
non-self-executing in another. 19
Even the cases cited by respondents holding
that certain constitutional provisions are
merely statements of principles and policies,
which are basically not self-executing and only
placed in the Constitution as moral incentives
to legislation, not as judicially enforceable
rights — are simply not in point. A reading of
these provisions indeed clearly shows that they
are not judicially enforceable constitutional
rights but merely guidelines for legislation. The
very terms of the provisions manifest that they
are only principles upon which the legislations
must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII
of the 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
Page 25 of 49
there is a right there is a remedy. Ubi jus ibi
remedium.
SECOND ISSUE:(MANILA HOTEL IS PART OF THE
NATIONAL PATRIMONY HENCE FILIPINO FIRST
POLICY APPLIES)
As regards our national patrimony, a member of
the 1986 Constitutional Commission 34 explains
—
The patrimony of the Nation that should be
conserved and developed refers not only to
out rich natural resources but also to the
cultural heritage of out race. It also refers to
our intelligence in arts, sciences and letters.
Therefore, we should develop not only our
lands, forests, mines and other natural
resources but also the mental ability or faculty
of our people.
We agree. In its plain and ordinary meaning,
the term patrimony pertains to heritage. 35
When the Constitution speaks of national
patrimony, it refers not only to the natural
resources of the Philippines, as the
Constitution could have very well used the
term natural resources, but also to the cultural
heritage of the Filipinos.
Manila Hotel has become a landmark — a
living testimonial of Philippine heritage. While
it was restrictively an American hotel when it
first opened in 1912, it immediately evolved to
be truly Filipino, Formerly a concourse for the
elite, it has since then become the venue of
various significant events which have shaped
Philippine history. It was called the Cultural
Center of the 1930's. It was the site of the
festivities during the inauguration of the
Philippine Commonwealth. Dubbed as the
Official Guest House of the Philippine
Government. it plays host to dignitaries and
official visitors who are accorded the
traditional Philippine hospitality.
POLITICAL LAW REVIEW Page 26 of 49

We cannot simply afford the government a

defense that arises out of the failure to enact
The history of the hotel has been chronicled in
further enabling, implementing or guiding
the book The Manila Hotel: The Heart and
legislation. In fine, the discourse of Fr. Joaquin G.
Memory of a City. During World War II the hotel
Bernas, S.J., on constitutional government is apt
was converted by the Japanese Military
—
Administration into a military headquarters.
When the American forces returned to
recapture Manila the hotel was selected by the
The executive department has a constitutional
Japanese together with Intramuros as the two
duty to implement laws, including the
(2) places fro their final stand. Thereafter, in the
Constitution, even before Congress acts —
1950's and 1960's, the hotel became the center
provided that there are discoverable legal
of political activities, playing host to almost
standards for executive action. When the
every political convention. In 1970 the hotel
executive acts, it must be guided by its own
reopened after a renovation and reaped
understanding of the constitutional command
numerous international recognitions, an
and of applicable laws. The responsibility for
acknowledgment of the Filipino talent and
reading and understanding the Constitution
ingenuity. In 1986 the hotel was the site of a
and the laws is not the sole prerogative of
failed coup d' etat where an aspirant for
Congress. If it were, the executive would have
vice-president was "proclaimed" President of
to ask Congress, or perhaps the Court, for an
the Philippine Republic.
interpretation every time the executive is
confronted by a constitutional command. That
is not how constitutional government operates.
For more than eight (8) decades Manila Hotel
45
has bore mute witness to the triumphs and
failures, loves and frustrations of the Filipinos;
its existence is impressed with public interest;
Respondents further argue that the
its own historicity associated with our struggle
constitutional provision is addressed to the
for sovereignty, independence and nationhood.
State, not to respondent GSIS which by itself
Verily, Manila Hotel has become part of our
possesses a separate and distinct personality.
national economy and patrimony. For sure, 51%
This argument again is at best specious. It is
of the equity of the MHC comes within the
undisputed that the sale of 51% of the MHC
purview of the constitutional shelter for it
could only be carried out with the prior
comprises the majority and controlling stock,
approval of the State acting through
so that anyone who acquires or owns the 51%
respondent Committee on Privatization. As
will have actual control and management of
correctly pointed out by Fr. Joaquin G. Bernas,
the hotel. In this instance, 51% of the MHC
S.J., this fact alone makes the sale of the assets
cannot be disassociated from the hotel and the
of respondents GSIS and MHC a "state action."
land on which the hotel edifice stands.
In constitutional jurisprudence, the acts of
Consequently, we cannot sustain respondents'
persons distinct from the government are
claim that the Filipino First Policy provision is
considered "state action" covered by the
not applicable since what is being sold is only
Constitution (1) when the activity it engages in
51% of the outstanding shares of the
is a "public function;" (2) when the
corporation, not the Hotel building nor the
government is so significantly involved with
land upon which the building stands.
the private actor as to make the government
responsible for his action; and, (3) when the
government has approved or authorized the
THIRD ISSUE:( GSIS SHOULD FOLLOW THE
action. It is evident that the act of respondent
FILIPINO FIRST POLICY DUE TO THE DOCTRINE
GSIS in selling 51% of its share in respondent
OF CONSTITUIONAL SUPREMACY)
MHC comes under the second and third
categories of "state action." Without doubt
therefore the transaction. although entered
POLITICAL LAW REVIEW
into by respondent GSIS, is in fact a transaction
of the State and therefore subject to the
constitutional command. 46
When the Constitution addresses the State it
refers not only to the people but also to the
government as elements of the State. After all,
government is composed of three (3) divisions
of power — legislative, executive and judicial.
Accordingly, a constitutional mandate directed
to the State is correspondingly directed to the
three(3) branches of government. It is
undeniable that in this case the subject
constitutional injunction is addressed among
others to the Executive Department and
respondent GSIS, a government
instrumentality deriving its authority from the
State.
It should be stressed that while the Malaysian
firm offered the higher bid it is not yet the
winning bidder. The bidding rules expressly
provide that the highest bidder shall only be
declared the winning bidder after it has
negotiated and executed the necessary
contracts, and secured the requisite approvals.
Since the "Filipino First Policy provision of the
Constitution bestows preference on qualified
Filipinos the mere tending of the highest bid is
not an assurance that the highest bidder will be
declared the winning bidder. Resultantly,
respondents are not bound to make the award
yet, nor are they under obligation to enter into
one with the highest bidder. For in choosing the
awardee respondents are mandated to abide by
the dictates of the 1987 Constitution the
provisions of which are presumed to be known
to all the bidders and other interested parties.
Adhering to the doctrine of constitutional
supremacy, the subject constitutional
provision is, as it should be, impliedly written
in the bidding rules issued by respondent GSIS,
lest the bidding rules be nullified for being
violative of the Constitution. It is a basic
principle in constitutional law that all laws and
contracts must conform with the fundamental
Page 27 of 49
law of the land. Those which violate the
Constitution lose their reason for being.
the constitutional mandate itself is reason
enough not to award the block of shares
immediately to the foreign bidder
notwithstanding its submission of a higher, or
even the highest, bid. In fact, we cannot
conceive of a stronger reason than the
constitutional injunction itself.
In the instant case, where a foreign firm
submits the highest bid in a public bidding
concerning the grant of rights, privileges and
concessions covering the national economy
and patrimony, thereby exceeding the bid of a
Filipino, there is no question that the Filipino
will have to be allowed to match the bid of the
foreign entity. And if the Filipino matches the
bid of a foreign firm the award should go to
the Filipino. It must be so if we are to give life
and meaning to the Filipino First Policy
provision of the 1987 Constitution. For, while
this may neither be expressly stated nor
contemplated in the bidding rules, the
constitutional fiat is, omnipresent to be simply
disregarded. To ignore it would be to sanction
a perilous skirting of the basic law.
This Court does not discount the apprehension
that this policy may discourage foreign
investors. But the Constitution and laws of the
Philippines are understood to be always open
to public scrutiny. These are given factors which
investors must consider when venturing into
business in a foreign jurisdiction. Any person
therefore desiring to do business in the
Philippines or with any of its agencies or
instrumentalities is presumed to know his rights
and obligations under the Constitution and the
laws of the forum.
FOURTH ISSUE: (THE REFUSAL OF GSIS TO SELL
THE SHARES TO MHC IS CONSIDERED AS
GRAVE ABUSE OF DISCRETION)
POLITICAL LAW REVIEW
Since petitioner has already matched the bid
price tendered by Renong Berhad pursuant to
the bidding rules, respondent GSIS is left with
no alternative but to award to petitioner the
block of shares of MHC and to execute the
necessary agreements and documents to effect
the sale in accordance not only with the bidding
guidelines and procedures but with the
Constitution as well. The refusal of respondent
GSIS to execute the corresponding documents
with petitioner as provided in the bidding rules
after the latter has matched the bid of the
Malaysian firm clearly constitutes grave abuse
of discretion.
The Filipino First Policy is a product of
Philippine nationalism. It is embodied in the
1987 Constitution not merely to be used as a
guideline for future legislation but primarily to
be enforced; so must it be enforced. This Court
as the ultimate guardian of the Constitution
will never shun, under any reasonable
circumstance, the duty of upholding the
majesty of the Constitution which it is tasked
to defend. It is worth emphasizing that it is not
the intention of this Court to impede and
diminish, much less undermine, the influx of
foreign investments. Far from it, the Court
encourages and welcomes more business
opportunities but avowedly sanctions the
preference for Filipinos whenever such
preference is ordained by the Constitution.
the Court will always defer to the
Constitution in the proper governance of a free
society; after all, there is nothing so sacrosanct
in any economic policy as to draw itself beyond
judicial review when the Constitution is
involved. 49
Nationalism is inherent, in the very concept of
the Philippines being a democratic and
republican state, with sovereignty residing in
the Filipino people and from whom all
government authority emanates. In
nationalism, the happiness and welfare of the
people must be the goal. The nation-state can
have no higher purpose. Any interpretation of
Page 28 of 49
any constitutional provision must adhere to
such basic concept. Protection of foreign
investments, while laudible, is merely a policy.
It cannot override the demands of nationalism.
50
The Manila Hotel or, for that matter, 51% of the
MHC, is not just any commodity to be sold to
the highest bidder solely for the sake of
privatization. We are not talking about an
ordinary piece of property in a commercial
district. We are talking about a historic relic that
has hosted many of the most important events
in the short history of the Philippines as a nation.
We are talking about a hotel where heads of
states would prefer to be housed as a strong
manifestation of their desire to cloak the dignity
of the highest state function to their official
visits to the Philippines. Thus the Manila Hotel
has played and continues to play a significant
role as an authentic repository of twentieth
century Philippine history and culture. In this
sense, it has become truly a reflection of the
Filipino soul — a place with a history of
grandeur; a most historical setting that has
played a part in the shaping of a country.
(The FiIipino First Policy enshrined in the 1987
Constitution, i.e., in the grant of rights,
privileges, and concessions covering the
national economy and patrimony, the State
shall give preference to qualified Filipinos)
MAGALONA VS SECRETARY EDUARDO ERMITA
FACTS:
In 1961, Congress passed Republic Act No. 3046
(RA 3046)2 demarcating the maritime baselines
of the Philippines as an archipelagic State.3 This
law followed the framing of the Convention on
the Territorial Sea and the Contiguous Zone in
1958 (UNCLOS I),4 codifying, among others, the
sovereign right of States parties over their
territorial sea, the breadth of which, however,
was left undetermined. Attempts to fill this void
POLITICAL LAW REVIEW
during the second round of negotiations in
Geneva in 1960 (UNCLOS II) proved futile. Thus,
domestically, RA 3046 remained unchanged for
nearly five decades, save for legislation passed
in 1968 (Republic Act No. 5446 [RA 5446])
correcting typographical errors and reserving
the drawing of baselines around Sabah in North
Borneo.
In March 2009, Congress amended RA 3046 by
enacting RA 9522, the statute now under
scrutiny. The change was prompted by the need
to make RA 3046 compliant with the terms of
the United Nations Convention on the Law of
the Sea (UNCLOS III),5 which the Philippines
ratified on 27 February 1984.6 Among others,
UNCLOS III prescribes the water-land ratio,
length, and contour of baselines of archipelagic
States like the Philippines7 and sets the
deadline for the filing of application for the
extended continental shelf.8 Complying with
these requirements, RA 9522 shortened one
baseline, optimized the location of some
basepoints around the Philippine archipelago
and classified adjacent territories, namely, the
Kalayaan Island Group (KIG) and the
Scarborough Shoal, as regimes of islands whose
islands generate their own applicable maritime
zones.
Petitioners, professors of law, law students and
a legislator, in their respective capacities as
citizens, taxpayers or x x x legislators,9 as the
case may be, assail the constitutionality of RA
9522 on two principal grounds, namely: (1) RA
9522 reduces Philippine maritime territory, and
logically, the reach of the Philippine states
sovereign power, in violation of Article 1 of the
1987 Constitution,10 embodying the terms of
the Treaty of Paris11 and ancillary treaties,12
and (2) RA 9522 opens the countrys waters
landward of the baselines to maritime passage
by all vessels and aircrafts, undermining
Philippine sovereignty and national security,
contravening the countrys nuclear-free policy,
and damaging marine resources, in violation of
relevant constitutional provisions.13
Page 29 of 49
In addition, petitioners contend that RA 9522s
treatment of the KIG as regime of islands not
only results in the loss of a large maritime area
but also prejudices the livelihood of subsistence
fishermen.14 To buttress their argument of
territorial diminution, petitioners facially attack
RA 9522 for what it excluded and included its
failure to reference either the Treaty of Paris or
Sabah and its use of UNCLOS IIIs framework of
regime of islands to determine the maritime
zones of the KIG and the Scarborough Shoal.
Commenting on the petition, respondent
officials raised threshold issues questioning (1)
the petitions compliance with the case or
controversy requirement for judicial review
grounded on petitioners alleged lack of locus
standi and (2) the propriety of the writs of
certiorari and prohibition to assail the
constitutionality of RA 9522. On the merits,
respondents defended RA 9522 as the countrys
compliance with the terms of UNCLOS III,
preserving Philippine territory over the KIG or
Scarborough Shoal. Respondents add that RA
9522 does not undermine the countrys security,
environment and economic interests or
relinquish the Philippines claim over Sabah.
Respondents also question the normative force,
under international law, of petitioners assertion
that what Spain ceded to the United States
under the Treaty of Paris were the islands and
all the waters found within the boundaries of
the rectangular area drawn under the Treaty of
Paris.
ISSUE:
WON Petitioner possess locus standi.
WON RA 9522 is unconstitutional
HELD:
POLITICAL LAW REVIEW
FIRST ISSUE: (THEY HAVE LOCUS STANDI)
we recognize petitioners locus standi as citizens
with constitutionally sufficient interest in the
resolution of the merits of the case which
undoubtedly raises issues of national
significance necessitating urgent resolution.
Indeed, owing to the peculiar nature of RA 9522,
it is understandably difficult to find other
litigants possessing a more direct and specific
interest to bring the suit, thus satisfying one of
the requirements for granting citizenship
standing.
SECOND ISSUE: (RA 9522 IS CONSTITUTIONAL
THERE ARE FOUR REASONS)
Petitioners theory fails to persuade us.
UNCLOS III has nothing to do with the
acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others,
sea-use rights over maritime zones (i.e., the
territorial waters [12 nautical miles from the
baselines], contiguous zone [24 nautical miles
from the baselines], exclusive economic zone
[200 nautical miles from the baselines]), and
continental shelves that UNCLOS III delimits.
UNCLOS III was the culmination of decades-long
negotiations among United Nations members to
codify norms regulating the conduct of States in
the worlds oceans and submarine areas,
recognizing coastal and archipelagic States
graduated authority over a limited span of
waters and submarine lands along their coasts.
On the other hand, baselines laws such as RA
9522 are enacted by UNCLOS III States parties
to mark-out specific basepoints along their
coasts from which baselines are drawn, either
straight or contoured, to serve as geographic
starting points to measure the breadth of the
maritime zones and continental shelf. Article
Page 30 of 49
48 of UNCLOS III on archipelagic States like ours
could not be any clearer:
Article 48. Measurement of the breadth of the
territorial sea, the contiguous zone, the
exclusive economic zone and the continental
shelf. The breadth of the territorial sea, the
contiguous zone, the exclusive economic zone
and the continental shelf shall be measured
from archipelagic baselines drawn in
accordance with article 47.
Thus, baselines laws are nothing but statutory
mechanisms for UNCLOS III States parties to
delimit with precision the extent of their
maritime zones and continental shelves. In
turn, this gives notice to the rest of the
international community of the scope of the
maritime space and submarine areas within
which States parties exercise treaty-based
rights, namely, the exercise of sovereignty over
territorial waters (Article 2), the jurisdiction to
enforce customs, fiscal, immigration, and
sanitation laws in the contiguous zone (Article
33), and the right to exploit the living and
non-living resources in the exclusive economic
zone (Article 56) and continental shelf (Article
77).
Even under petitioners theory that the
Philippine territory embraces the islands and all
the waters within the rectangular area
delimited in the Treaty of Paris, the baselines of
the Philippines would still have to be drawn in
accordance with RA 9522 because this is the
only way to draw the baselines in conformity
with UNCLOS III. The baselines cannot be
drawn from the boundaries or other portions
of the rectangular area delineated in the
Treaty of Paris, but from the outermost islands
and drying reefs of the archipelago.24
UNCLOS III and its ancillary baselines laws play
no role in the acquisition, enlargement or, as
petitioners claim, diminution of territory.
Under traditional international law typology,
States acquire (or conversely, lose) territory
POLITICAL LAW REVIEW
through occupation, accretion, cession and
prescription,25 not by executing multilateral
treaties on the regulations of sea-use rights or
enacting statutes to comply with the treatys
terms to delimit maritime zones and continental
shelves. Territorial claims to land features are
outside UNCLOS III, and are instead governed by
the rules on general international law.
Second, the classification of KGI and
Scarborough Shoal as Regime of Islands is
consistent with the Philippines’ sovereignty.
Had RA 9522 enclosed the islands as part of the
archipelago, the country will be violating
UNCLOS III since it categorically stated that the
length of the baseline shall not exceed 125
nautical miles. So what the legislators did is to
carefully analyze the situation: the country, for
decades, had been claiming sovereignty over
KGI and Scarborough Shoal on one hand and
on the other hand they had to consider that
these are located at non-appreciable distance
from the nearest shoreline of the Philippine
archipelago. So, the classification is in
accordance with the Philippines sovereignty
and State’s responsible observance of its pacta
sunt servanda obligation under UNCLOS III.
petitioners argument that the KIG now lies
outside Philippine territory because the
baselines that RA 9522 draws do not enclose
the KIG is negated by RA 9522 itself. Section 2
of the law commits to text the Philippines
continued claim of sovereignty and jurisdiction
over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas
over which the Philippines likewise exercises
sovereignty and jurisdiction shall be
determined as Regime of Islands under the
Republic of the Philippines consistent with
Article 121 of the United Nations Convention
on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted
under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as
Scarborough Shoal. (Emphasis supplied)
Page 31 of 49
Had Congress in RA 9522 enclosed the KIG and
the Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have
ensued. The Philippines would have committed
a breach of two provisions of UNCLOS III. First,
Article 47 (3) of UNCLOS III requires that [t]he
drawing of such baselines shall not depart to
any appreciable extent from the general
configuration of the archipelago. Second, Article
47 (2) of UNCLOS III requires that the length of
the baselines shall not exceed 100 nautical
miles, save for three per cent (3%) of the total
number of baselines which can reach up to 125
nautical miles.31
Although the Philippines has consistently
claimed sovereignty over the KIG32 and the
Scarborough Shoal for several decades, these
outlying areas are located at an appreciable
distance from the nearest shoreline of the
Philippine archipelago,33 such that any straight
baseline loped around them from the nearest
basepoint will inevitably depart to an
appreciable extent from the general
configuration of the archipelago.
The principal sponsor of RA 9522 in the Senate,
Senator Miriam Defensor-Santiago, took pains
to emphasize the foregoing during the Senate
deliberations:
What we call the Kalayaan Island Group or
what the rest of the world call[] the Spratlys
and the Scarborough Shoal are outside our
archipelagic baseline because if we put them
inside our baselines we might be accused of
violating the provision of international law
which states: The drawing of such baseline
shall not depart to any appreciable extent from
the general configuration of the archipelago.
So sa loob ng ating baseline, dapat magkalapit
ang mga islands. Dahil malayo ang
Scarborough Shoal, hindi natin masasabing
malapit sila sa atin although we are still
POLITICAL LAW REVIEW
allowed by international law to claim them as
our own.
This is called contested islands outside our
configuration. We see that our archipelago is
defined by the orange line which [we] call[]
archipelagic baseline. Ngayon, tingnan ninyo
ang maliit na circle doon sa itaas, that is
Scarborough Shoal, itong malaking circle sa
ibaba, that is Kalayaan Group or the Spratlys.
Malayo na sila sa ating archipelago kaya kung
ilihis pa natin ang dating archipelagic baselines
para lamang masama itong dalawang circles,
hindi na sila magkalapit at baka hindi na
tatanggapin ng United Nations because of the
rule that it should follow the natural
configuration of the archipelago.
Hence, far from surrendering the Philippines
claim over the KIG and the Scarborough Shoal,
Congress decision to classify the KIG and the
Scarborough Shoal as Regime[s] of Islands
under the Republic of the Philippines
consistent with Article 12136 of UNCLOS III
manifests the Philippine States responsible
observance of its pacta sunt servanda
obligation under UNCLOS III. Under Article 121
of UNCLOS III, any naturally formed area of
land, surrounded by water, which is above
water at high tide, such as portions of the KIG,
qualifies under the category of regime of
islands, whose islands generate their own
applicable maritime zones
THIRD, the new base line introduced by RA
9522 is without prejudice with delineation of
the baselines of the territorial sea around the
territory of Sabah, situated in North Borneo,
over which the Republic of the Philippines has
acquired dominion and sovereignty.
LASTLY, the UNCLOS III and RA 9522 are not
incompatible with the Constitution’s delineation
of internal waters. Petitioners contend that RA
9522 transformed the internal waters of the
Philippines to archipelagic waters hence
subjecting these waters to the right of
Page 32 of 49
innocent and sea lanes passages, exposing the
Philippine internal waters to nuclear and
maritime pollution hazards. The Court
emphasized that the Philippines exercises
sovereignty over the body of water lying
landward of the baselines, including the air
space over it and the submarine areas
underneath, regardless whether internal or
archipelagic waters. However, sovereignty will
not bar the Philippines to comply with its
obligation in maintaining freedom of
navigation and the generally accepted
principles of international law. It can be either
passed by legislator as a municipal law or in
the absence thereof, it is deemed incorporated
in the Philippines law since the right of
innocent passage is a customary international
law, thus automatically incorporated thereto.
This does not mean that the states are placed
in a lesser footing; it just signifies concession of
archipelagic states in exchange for their right
to claim all waters inside the baseline. In fact,
the demarcation of the baselines enables the
Philippines to delimit its exclusive economic
zone, reserving solely to the Philippines the
exploitation of all living and non-living
resources within such zone. Such a maritime
delineation binds the international community
since the delineation is in strict observance of
UNCLOS III. If the maritime delineation is
contrary to UNCLOS III, the international
community will of course reject it and will
refuse to be bound by it.
The Court expressed that it is within the
Congress who has the prerogative to
determine the passing of a law and not the
Court. Moreover, such enactment was
necessary in order to comply with the UNCLOS
III; otherwise, it shall backfire on the
Philippines for its territory shall be open to
seafaring powers to freely enter and exploit
the resources in the waters and submarine
areas around our archipelago and it will
weaken the country’s case in any international
dispute over Philippine maritime space.
POLITICAL LAW REVIEW
The enactment of UNCLOS III compliant
baselines law for the Philippine archipelago and
adjacent areas, as embodied in RA 9522, allows
an internationally-recognized delimitation of
the breadth of the Philippines’ maritime zones
and continental shelf. RA 9522 is therefore a
most vital step on the part of the Philippines in
safeguarding its maritime zones, consistent
with the Constitution and our national interest.
CO KIM CHAM VS EUSEBIO VALDEZ TAN KEH
AND ARSENIO P. DIZON
FACTS:
This petition for mandamus in which petitioner
prays that the respondent judge of the lower
court be ordered to continue the proceedings in
civil case No. 3012 of said court, which were
initiated under the regime of the so-called
Republic of the Philippines established during
the Japanese military occupation of these
Islands.
The respondent judge refused to take
cognizance of and continue the proceedings in
said case on the ground that the proclamation
issued on October 23, 1944, by General Douglas
MacArthur had the effect of invalidating and
nullifying all judicial proceedings and
judgements of the court of the Philippines
under the Philippine Executive Commission and
the Republic of the Philippines established
during the Japanese military occupation, and
that, furthermore, the lower courts have no
jurisdiction to take cognizance of and continue
judicial proceedings pending in the courts of the
defunct Republic of the Philippines in the
absence of an enabling law granting such
authority. And the same respondent, in his
answer and memorandum filed in this Court,
contends that the government established in
the Philippines during the Japanese occupation
were no de facto governments.
Page 33 of 49
On January 2, 1942, the Imperial Japanese
Forces occupied the City of Manila, and on the
next day their Commander in Chief proclaimed
"the Military Administration under law over the
districts occupied by the Army." In said
proclamation, it was also provided that "so far
as the Military Administration permits, all the
laws now in force in the Commonwealth, as well
as executive and judicial institutions, shall
continue to be effective for the time being as in
the past," and "all public officials shall remain in
their present posts and carry on faithfully their
duties as before."
A civil government or central administration
organization under the name of "Philippine
Executive Commission was organized by Order
No. 1 issued on January 23, 1942, by the
Commander in Chief of the Japanese Forces in
the Philippines, and Jorge B. Vargas, who was
appointed Chairman thereof, was instructed to
proceed to the immediate coordination of the
existing central administrative organs and
judicial courts, based upon what had existed
therefore, with approval of the said
Commander in Chief, who was to exercise
jurisdiction over judicial courts.
The Chairman of the Executive Commission, as
head of the central administrative organization,
issued Executive Orders Nos. 1 and 4, dated
January 30 and February 5, 1942, respectively,
in which the Supreme Court, Court of Appeals,
Courts of First Instance, and the justices of the
peace and municipal courts under the
Commonwealth were continued with the same
jurisdiction, in conformity with the instructions
given to the said Chairman of the Executive
Commission by the Commander in Chief of
Japanese Forces in the Philippines in the latter's
Order No. 3 of February 20, 1942, concerning
basic principles to be observed by the Philippine
Executive Commission in exercising legislative,
executive and judicial powers. Section 1 of said
Order provided that "activities of the
administration organs and judicial courts in the
Philippines shall be based upon the existing
statutes, orders, ordinances and customs. . . ."
POLITICAL LAW REVIEW
On October 14, 1943, the so-called Republic of
the Philippines was inaugurated, but no
substantial change was effected thereby in the
organization and jurisdiction of the different
courts that functioned during the Philippine
Executive Commission, and in the laws they
administered and enforced.
On February 3, 1945, the City of Manila was
partially liberated and on February 27, 1945,
General MacArthur, on behalf of the
Government of the United States, solemnly
declared "the full powers and responsibilities
under the Constitution restored to the
Commonwealth whose seat is here established
as provided by law."
ISSUE:
WON the judicial acts and proceedings of the
court existing in the Philippines under the
Philippine Executive Commission and the
Republic of the Philippines were good and valid
and remained so even after the liberation or
reoccupation of the Philippines by the United
States and Filipino forces;
WON the proclamation issued on October 23,
1944, by General Douglas MacArthur,
Commander in Chief of the United States Army,
in which he declared "that all laws, regulations
and processes of any of the government in the
Philippines than that of the said Commonwealth
are null and void and without legal effect in
areas of the Philippines free of enemy
occupation and control," has invalidated all
judgements and judicial acts and proceedings of
the said courts;
WON the said judicial acts and proceedings
have not been invalidated by said proclamation,
whether the present courts of the
Commonwealth, which were the same court
existing prior to, and continued during, the
Japanese military occupation of the Philippines,
may continue those proceedings pending in said
Page 34 of 49
courts at the time the Philippines were
reoccupied and liberated by the United States
and Filipino forces, and the Commonwealth of
the Philippines were reestablished in the
Islands.
HELD:
FIRST ISSUE:
AFFIRMATIVE. [A]ll acts and proceedings of the
legislative, executive, and judicial departments
of a de facto government are good and valid. If
[the governments established in these Islands
under the names of the Philippine Executive
Commission and Republic of the Philippines
during the Japanese military occupation or
regime were de facto governments], the
judicial acts and proceedings of those
governments remain good and valid even after
the liberation or reoccupation of the
Philippines by the American and Filipino
forces.
The governments by the Philippine Executive
Commission and the Republic of the
Philippines during the Japanese military
occupation being de facto governments, it
necessarily follows that the judicial acts and
proceedings of the courts of justice of those
governments, which are not of a political
complexion, were good and valid, and, by
virtue of the well-known principle of
postliminy in international law, remained good
and valid after the liberation or reoccupation
of the Philippines by the American and Filipino
forces under the leadership of General Douglas
MacArthur.
It is a legal truism in political and international
law that all acts and proceedings of the
legislative, executive, and judicial departments
of a de facto government are good and valid.
The question to be determined is whether or
not the governments established in these
Islands under the names of the Philippine
POLITICAL LAW REVIEW
Executive Commission and Republic of the
Philippines during the Japanese military
occupation or regime were de facto
governments. If they were, the judicial acts and
proceedings of those governments remain good
and valid even after the liberation or
reoccupation of the Philippines by the American
and Filipino forces.
There are several kinds of de facto governments.
The first, or government de facto in a proper
legal sense, is that government that gets
possession and control of, or usurps, by force or
by the voice of the majority, the rightful legal
governments and maintains itself against the
will of the latter The second is that which is
established and maintained by military forces
who invade and occupy a territory of the enemy
in the course of war, and which is denominated
a government of paramount force And the third
is that established as an independent
government by the inhabitants of a country who
rise in insurrection against the parent state of
such as the government of the Southern
Confederacy in revolt not concerned in the
present case with the first kind, but only with
the second and third kinds of de facto
governments.
the Supreme Court of the United States, in the
case of Thorington vs. Smith (8 Wall., 1), said:
"But there is another description of government,
called also by publicists a government de facto,
but which might, perhaps, be more aptly
denominated a government of paramount force.
Its distinguishing characteristics are (1), that its
existence is maintained by active military power
with the territories, and against the rightful
authority of an established and lawful
government; and (2), that while it exists it
necessarily be obeyed in civil matters by private
citizens who, by acts of obedience rendered in
submission to such force, do not become
responsible, or wrongdoers, for those acts,
though not warranted by the laws of the rightful
government. Actual governments of this sort
are established over districts differing greatly in
extent and conditions. They are usually
administered directly by military authority, but
they may be administered, also, civil authority,
Page 35 of 49
supported more or less directly by military
force.
The powers and duties of de facto governments
of this description are regulated in Section III of
the Hague Conventions of 1907, which is a
revision of the provisions of the Hague
Conventions of 1899 on the same subject of
said Section III provides "the authority of the
legislative power having actually passed into the
hands of the occupant, the latter shall take
steps in his power to reestablish and insure, as
far as possible, public order and safety, while
respecting, unless absolutely prevented, the
laws in force in the country."
The doctrine upon this subject is thus summed
up by Halleck, in his work on International Law
(Vol. 2, p. 444): "The right of one belligerent to
occupy and govern the territory of the enemy
while in its military possession, is one of the
incidents of war, and flows directly from the
right to conquer. We, therefore, do not look to
the Constitution or political institutions of the
conqueror, for authority to establish a
government for the territory of the enemy in his
possession, during its military occupation, nor
for the rules by which the powers of such
government are regulated and limited. Such
authority and such rules are derived directly
from the laws war, as established by the usage
of the of the world, and confirmed by the
writings of publicists and decisions of courts —
in fine, from the law of nations. . . . The
municipal laws of a conquered territory, or the
laws which regulate private rights, continue in
force during military occupation, excepts so far
as they are suspended or changed by the acts of
conqueror. . . . He, nevertheless, has all the
powers of a de facto government, and can at his
pleasure either change the existing laws or
make new ones."
And applying the principles for the exercise of
military authority in an occupied territory,
which were later embodied in the said Hague
Conventions, President McKinley, in his
executive order to the Secretary of War of May
POLITICAL LAW REVIEW Page 36 of 49

19,1898, relating to the occupation of the Philippine Executive Commission was a civil
Philippines by United States forces, said in part: and not a military government and was run by
"Though the powers of the military occupant Filipinos and not by Japanese nationals, is of
are absolute and supreme, and immediately no consequence.
operate upon the political condition of the
inhabitants, the municipal laws of the
conquered territory, such as affect private rights SECOND ISSUE:
of person and property and provide for the
punishment of crime, are considered as
continuing in force, so far as they are
NEGATIVE. The phrase “processes of any other
compatible with the new order of things, until
government” is broad and may refer not only
they are suspended or superseded by the
to the judicial processes, but also to
occupying belligerent; and in practice they are
administrative or legislative, as well as
not usually abrogated, but are allowed to
constitutional, processes of the Republic of the
remain in force and to be administered by the
Philippines or other governmental agencies
ordinary tribunals, substantially as they were
established in the Islands during the Japanese
before the occupation. This enlightened
occupation.
practice is, so far as possible, to be adhered to
on the present occasion. The judges and the
other officials connected with the
administration of justice may, if they accept the [I]t should be presumed that it was not, and
authority of the United States, continue to could not have been, the intention of General
administer the ordinary law of the land as Douglas MacArthur, in using the phrase
between man and man under the supervision of “processes of any other government” in said
the American Commander in Chief." proclamation, to refer to judicial processes, in
violation of said principles of international law.,
it should be presumed that it was not, and
could not have been, the intention of General
In view of the foregoing, it is evident that the
Douglas MacArthur, in using the phrase
Philippine Executive Commission, which was
"processes of any other government" in said
organized by Order No. 1, issued on January 23,
proclamation, to refer to judicial processes, in
1942, by the Commander of the Japanese
violation of said principles of international law.
forces, was a civil government established by
The only reasonable construction of the said
the military forces of occupation and therefore
phrase is that it refers to governmental
a de facto government of the second kind. It
processes other than judicial processes of court
was not different from the government
proceedings, for according to a well-known
established by the British in Castine, Maine, or
rule of statutory construction, set forth in 25 R.
by the United States in Tampico, Mexico. As
C. L., p. 1028, "a statute ought never to be
Halleck says, "The government established
construed to violate the law of nations if any
over an enemy's territory during the military
other possible construction remains."
occupation may exercise all the powers given
by the laws of war to the conqueror over the
conquered, and is subject to all restrictions
which that code imposes. It is of little [T]he legislative power of a commander in
consequence whether such government be chief of military forces who liberates or
called a military or civil government. Its reoccupies his own territory which has been
character is the same and the source of its occupied by an enemy, during the military and
authority the same. In either case it is a before the restoration of the civil regime, is as
government imposed by the laws of war, and broad as that of the commander in chief of the
so far it concerns the inhabitants of such military forces of invasion and occupation, it is
territory or the rest of the world, those laws to be presumed that General Douglas
alone determine the legality or illegality of its MacArthur, who was acting as an agent or a
acts." (Vol. 2, p. 466.) The fact that the representative of the Government and the
POLITICAL LAW REVIEW
President of the United States, constitutional
commander in chief of the United States Army,
did not intend to act against the principles of
the law of nations asserted by the Supreme
Court of the United States from the early
period of its existence, applied by the
Presidents of the United States, and later
embodied in the Hague Conventions of 1907.
as above indicated. It is not to be presumed that
General Douglas MacArthur, who enjoined in
the same proclamation of October 23, 1944,
"upon the loyal citizens of the Philippines full
respect and obedience to the Constitution of
the Commonwealth of the Philippines," should
not only reverse the international policy and
practice of his own government, but also
disregard in the same breath the provisions of
section 3, Article II, of our Constitution, which
provides that "The Philippines renounces war as
an instrument of national policy, and adopts the
generally accepted principles of international
law as part of the law of the Nation."
The mere conception or thought of possibility
that the titular sovereign or his representatives
who reoccupies a territory occupied by an
enemy, may set aside or annul all the judicial
acts or proceedings of the tribunals which the
belligerent occupant had the right and duty to
establish in order to insure public order and
safety during military occupation, would be
sufficient to paralyze the social life of the
country or occupied territory, for it would have
to be expected that litigants would not
willingly submit their litigation to courts whose
judgements or decisions may afterwards be
annulled, and criminals would not be deterred
from committing crimes or offenses in the
expectancy that they may escaped the penalty
if judgments rendered against them may be
afterwards set aside.
That the proclamation has not invalidated all
the judgements and proceedings of the courts
of justice during the Japanese regime, is
impliedly confirmed by Executive Order No. 37,
which has the force of law, issued by the
President of the Philippines on March 10, 1945,
by virtue of the emergency legislative power
vested in him by the Constitution and the laws
Page 37 of 49
of the Commonwealth of the Philippines. Said
Executive order abolished the Court of Appeals,
and provided "that all case which have
heretofore been duly appealed to the Court of
Appeals shall be transmitted to the Supreme
Court final decision." This provision impliedly
recognizes that the judgments and proceedings
of the courts during the Japanese military
occupation have not been invalidated by the
proclamation of General MacArthur of October
23, because the said Order does not say or
refer to cases which have been duly appealed
to said court prior to the Japanese occupation,
but to cases which had therefore, that is, up to
March 10, 1945, been duly appealed to the
Court of Appeals; and it is to be presumed that
almost all, if not all, appealed cases pending in
the Court of Appeals prior to the Japanese
military occupation of Manila on January 2,
1942, had been disposed of by the latter
before the restoration of the Commonwealth
Government in 1945; while almost all, if not all,
appealed cases pending on March 10, 1945, in
the Court of Appeals were from judgments
rendered by the Court of First Instance during
the Japanese regime.
The respondent judge quotes a portion of
Wheaton's International Law which say:
"Moreover when it is said that an occupier's
acts are valid and under international law
should not be abrogated by the subsequent
conqueror, it must be remembered that no
crucial instances exist to show that if his acts
should be reversed, any international wrong
would be committed. What does happen is
that most matters are allowed to stand by the
restored government, but the matter can
hardly be put further than this." (Wheaton,
International Law, War, 7th English edition of
1944, p. 245.) And from this quotion the
respondent judge "draws the conclusion that
whether the acts of the occupant should be
considered valid or not, is a question that is up
to the restored government to decide; that
there is no rule of international law that denies
to the restored government to decide; that
there is no rule of international law that denies
to the restored government the right of
exercise its discretion on the matter, imposing
upon it in its stead the obligation of
POLITICAL LAW REVIEW
recognizing and enforcing the acts of the
overthrown government."
There is doubt that the subsequent conqueror
has the right to abrogate most of the acts of the
occupier, such as the laws, regulations and
processes other than judicial of the government
established by the belligerent occupant. But in
view of the fact that the proclamation uses the
words "processes of any other government"
and not "judicial processes" prisely, it is not
necessary to determine whether or not
General Douglas MacArthur had power to
annul and set aside all judgments and
proceedings of the courts during the Japanese
occupation. The question to be determined is
whether or not it was his intention, as
representative of the President of the United
States, to avoid or nullify them. If the
proclamation had, expressly or by necessary
implication, declared null and void the judicial
processes of any other government, it would be
necessary for this court to decide in the present
case whether or not General Douglas
MacArthur had authority to declare them null
and void. But the proclamation did not so
provide, undoubtedly because the author
thereof was fully aware of the limitations of his
powers as Commander in Chief of Military
Forces of liberation or subsequent conqueror.
If a belligerent occupant is required to
establish courts of justice in the territory
occupied, and forbidden to prevent the
nationals thereof from asserting or enforcing
therein their civil rights, by necessary
implication, the military commander of the
forces of liberation or the restored government
is restrained from nullifying or setting aside the
judgments rendered by said courts in their
litigation during the period of occupation.
Otherwise, the purpose of these precepts of
the Hague Conventions would be thwarted, for
to declare them null and void would be
tantamount to suspending in said courts the
right and action of the nationals of the
territory during the military occupation thereof
by the enemy. It goes without saying that a law
that enjoins a person to do something will not
at the same time empower another to undo the
Page 38 of 49
same. Although the question whether the
President or commanding officer of the United
States Army has violated restraints imposed by
the constitution and laws of his country is
obviously of a domestic nature, yet, in
construing and applying limitations imposed on
the executive authority, the Supreme Court of
the United States, in the case of Ochoa, vs.
Hernandez (230 U.S., 139), has declared that
they "arise from general rules of international
law and from fundamental principles known
wherever the American flag flies."
It is, therefore, evident that the proclamation
of General MacArthur of October 23, 1944,
which declared that "all laws, regulations and
processes of any other government in the
Philippines than that of the said
Commonwealth are null and void without legal
effect in areas of the Philippines free of enemy
occupation and control," has not invalidated
the judicial acts and proceedings, which are
not a political complexion, of the courts of
justice in the Philippines that were continued
by the Philippine Executive Commission and
the Republic of the Philippines during the
Japanese military occupation, and that said
judicial acts and proceedings were good and
valid before and now good and valid after the
reoccupation of liberation of the Philippines by
the American and Filipino forces.
THIRD ISSUE:
AFFIRMATIVE. Although in theory the authority
the authority of the local civil and judicial
administration is suspended as a matter of
course as soon as military occupation takes
place, in practice the invader does not usually
take the administration of justice into his own
hands, but continues the ordinary courts or
tribunals to administer the laws of the country
which he is enjoined, unless absolutely
prevented, to respect.
[I]n the Executive Order of President McKinley
to the Secretary of War, “in practice, they (the
POLITICAL LAW REVIEW
municipal laws) are not usually abrogated but
are allowed to remain in force and to be
administered by the ordinary tribunals
substantially as they were before the
occupation. This enlightened practice is, so far
as possible, to be adhered to on the present
occasion.”
From a theoretical point of view it may be said
that the conqueror is armed with the right to
substitute his arbitrary will for all preexisting
forms of government, legislative, executive
and judicial. From the stand-point of actual
practice such arbitrary will is restrained by the
provision of the law of nations which compels
the conqueror to continue local laws and
institution so far as military necessity will
permit.
it is a legal maxim, that excepting that of a
political nature, "Law once established
continues until changed by the some
competent legislative power. It is not change
merely by change of sovereignty." (Joseph H.
Beale, Cases on Conflict of Laws, III, Summary
Section 9, citing Commonwealth vs. Chapman,
13 Met., 68.) As the same author says, in his
Treatise on the Conflict on Laws (Cambridge,
1916, Section 131): "There can no break or
interregnum in law. From the time the law
comes into existence with the first-felt
corporateness of a primitive people it must last
until the final disappearance of human society.
Once created, it persists until a change take
place, and when changed it continues in such
changed condition until the next change, and so
forever. Conquest or colonization is impotent to
bring law to an end; in spite of change of
constitution, the law continues unchanged until
the new sovereign by legislative acts creates a
change."
As courts are creatures of statutes and their
existence defends upon that of the laws which
create and confer upon them their jurisdiction,
it is evident that such laws, not being a political
nature, are not abrogated by a change of
sovereignty, and continue in force "ex proprio
Page 39 of 49
vigore" unless and until repealed by legislative
acts. A proclamation that said laws and courts
are expressly continued is not necessary in
order that they may continue in force. Such
proclamation, if made, is but a declaration of
the intention of respecting and not repealing
those laws. Therefore, even assuming that
Japan had legally acquired sovereignty over
these Islands, which she had afterwards
transferred to the so-called Republic of the
Philippines, and that the laws and the courts of
these Islands had become the courts of Japan,
as the said courts of the laws creating and
conferring jurisdiction upon them have
continued in force until now, it necessarily
follows that the same courts may continue
exercising the same jurisdiction over cases
pending therein before the restoration of the
Commonwealth Government, unless and until
they are abolished or the laws creating and
conferring jurisdiction upon them are repealed
by the said government. As a consequence,
enabling laws or acts providing that proceedings
pending in one court be continued by or
transferred to another court, are not required
by the mere change of government or
sovereignty. They are necessary only in case the
former courts are abolished or their jurisdiction
so change that they can no longer continue
taking cognizance of the cases and proceedings
commenced therein, in order that the new
courts or the courts having jurisdiction over said
cases may continue the proceedings.
In RE Garcia Bosque:(Nationality Issue in order
to practice law)
FACTS:
The cession of the Philippine Archipelago having
been agreed upon by the parties to the treaty of
Paris of December 10, 1898, the compulsory
subjection of the subjects of the ceding power
to the new sovereign followed as a logical
consequence. The status of these subjects was
not uniform, as in addition to the natives there
were others who were merely residents but
who, equally with the natives, had interests and
POLITICAL LAW REVIEW
rights inherent in the nationality of the territory.
With respect to these the special agreement
contained in article 9 was established, by virtue
of which it was agreed to accord them the right
of electing to leave the country, thus freeing
themselves of subjection to the new sovereign,
or to continue to reside in the territory, in which
case the expiration of the term of eighteen
months without their making an express
declaration of intention to retain their Spanish
nationality resulted in the loss of the latter, such
persons thereby becoming subjects of the new
sovereign in the same manner as the natives of
these Islands. The period of eighteen months
began to run from the date of the exchange of
the ratifications of the treaty — that is to say,
from April 11, 1899, and expired on the
corresponding day of October, 1900. The
petitioner absented himself from these Islands
on May 30, 1899, and remained absent
therefrom during the whole period. It was in
January, 1901, that he returned to these Islands.
ISSUE:
WON Petitioner lost his spanish nationality by
reason of his residence in the territory after the
11th of October, 1900, and his failure to make
declaration of his intention to preserve it within
the period agreed upon by the high contracting
parties to the treaty of Paris, and to have
adopted the nationality of the native subjects
under the presumption arising from the
conditions expressed.
HELD:(NO! He did not lost his Spanish
nationality)
He can only acquire it through voluntary
renunciation of his present nationality by
seeking to become naturalized in these
Islands; .
The status of the petitioner with respect to the
new sovereignty of the territory having been
defined, it remains to determine the question
Page 40 of 49
raised as to whether Spanish subjects resident
therein constitute an intermediate class
between other foreign residents and the native
of the country in whose behalf some specially
favorable conditions have been stipulated.
Upon this point no proposition was made, even
incidentally, nor was any reference made to it in
the discussions which preceded the treaty of
Paris. The American Commissioners, referring
to Spanish subjects, natives of Spain, simply
said: "Such persons have the fullest right to
dispose of their property and remove from the
territory or remain therein to continue to be
Spanish subjects or elect the nationality of the
new territory." (Memorandum annexed to
Protocol No. 22.) "They shall also have the
right to carry on their industry, commerce, and
profession, being subject in respect thereof to
such laws as are applicable to other
foreigners." (Art. 9 of the treaty of Paris.) The
laws applicable to other foreigners were, prior
to that treaty, the Law of Foreigners for the
Ultramarine Provinces of July 4, 1870, and
article 27 of the Civil Code. The first of these
laws in its thirty-ninth article authorized all
foreigners to engage in any kind of industry in
the Spanish ultramarine provinces subject to
the laws prevailing therein, and to practice any
profession for which the laws did not require a
diploma of proficiency granted by the Spanish
authorities. No one can doubt that the legal
profession is one of those for the practice of
which the law required a diploma of
proficiency granted by the Spanish authorities.
The second law cited provides that foreigners in
Spain shall enjoy the rights which the civil laws
accord to Spaniards, subject to the provisions of
article 2 of the constitution of the State. Article
2 of the constitution of 1876 establishes the
same restriction or limitation as the law of
foreigners. Hence if other foreigners could not
then engage in the practice of law, and by the
express prohibition of the Code of Civil
Procedure in force can not do so at the present
time, neither can Spanish subjects do so, they
being in every respect upon the same footing
as other foreigners.
If, then, the petitioner upon his departure from
these Islands on May 30, 1899, did not take
with him the nationality or the native
POLITICAL LAW REVIEW
inhabitants impressed by the treaty of Paris,
which had been in force from the 11th of April
of the same year; if he departed as a Spaniard
and continued to be a Spaniard, by taking the
first course left open by the right of option
stipulated in the treaty of Paris, without being
affected by the presumptive nationality of the
territory arising from the fact of residence and
the lapse of the time fixed; if he had not
elected to adopt this nationality of the
territory by express declaration within the
same period; if after the expiration of that
period it is expressly provided that the right of
option shall no longer be available, and that
the only course is naturalization, as to which
subject upon equal footing with other foreign
residents he can not practice the legal
profession under the law either prior or
subsequent to the treaty of Paris, it is evident
that this court can not regard the petitioner as
possessed of the qualifications alleged.
The new petition presented by him for
admission to the bar of these Islands must
therefore be denied, and it is so ordered.
IN RE GLORIA BALDELLO (PETITION FOR
NATURALIZATION)
FACTS:
We believe, and so hold, that there being no
new citizenship imposed upon her by marriage,
nothing could have divested her of her original
citizenship, and, therefore, her Philippine
citizenship remained unchanged. The general
rule that a married woman follows the
nationality of her husband presupposes a
nationality in the husband. Where no such
nationality exists, the rule does not apply.
Page 41 of 49
Our opinion finds corroboration in the rule
indicated in Roa vs. Collector of Customs (23
Phil., 315, 324, 325), which is now a legal
provision embodied in paragraph 7, article 1, of
Commonwealth Act No. 63, to the effect that a
Filipino woman does not lose her citizenship by
marrying a foreigner belonging to a nation the
laws of which do not allow her to acquire the
husband's nationality. Were it not for this rule,
if a Filipino woman loses her nationality simply
by marrying a foreigner, even without acquiring
the foreigner's citizenship, then she would
become destitute of nationality. And evidently
the purpose of the said rule is to prevent such
condition of statelessness in a Filipino woman
married to an alien, a policy that is perfectly
applicable in the present case.
We hold, therefore, that appellant Gloria
Baldello , is a Filipino citizen, and accordingly
her petition for Philippine citizenship is
unnecessary.
ISSUE:
WON Petitioner Lost her nationality and
therefore required to apply for naturalization
HELD:(no! She retains her filipino nationality
and does not need to apply for naturalization)
We believe, and so hold, that there being no
new citizenship imposed upon her by marriage,
nothing could have divested her of her original
citizenship, and, therefore, her Philippine
citizenship remained unchanged. The general
rule that a married woman follows the
nationality of her husband presupposes a
nationality in the husband. Where no such
nationality exists, the rule does not apply.
Our opinion finds corroboration in the rule
indicated in Roa vs. Collector of Customs (23
Phil., 315, 324, 325), which is now a legal
provision embodied in paragraph 7, article 1, of
Commonwealth Act No. 63, to the effect that a
POLITICAL LAW REVIEW
Filipino woman does not lose her citizenship by
marrying a foreigner belonging to a nation the
laws of which do not allow her to acquire the
husband's nationality. Were it not for this rule,
if a Filipino woman loses her nationality simply
by marrying a foreigner, even without acquiring
the foreigner's citizenship, then she would
become destitute of nationality. And evidently
the purpose of the said rule is to prevent such
condition of statelessness in a Filipino woman
married to an alien, a policy that is perfectly
applicable in the present case.
We hold, therefore, that appellant Gloria
Baldello , is a Filipino citizen, and accordingly
her petition for Philippine citizenship is
unnecessary.
TAN CHONG VS SECRETARY OF LABOR
FACTS:
On 15 October 1941, a decision was
promulgated in thecase of Tan Chong vs.
Secretary of Labor, G.R. No. 47616,whereby this
Court affirmed the judgment of the Court of
First Instance of Manila, which hAd granted the
writ of habeas corpus applied for by tan Chong,
on the ground that he, being a native of the
Philippines, of a Chinese father and a Filipino
mother, is a citizen of the Philippines.
On the same date, in the case of Lam Swee Sang
vs. Commonwealth of the Philippines (G.R. No.
47623), this Court rendered a decision
dismissing the petition of the applicant for
naturalization filed in the Court of First Instance
of Zamboanga, on the ground that the applicant,
having been born in Sulu, Philippines, of a
Chinese father and Filipino mother, is a citizen
of the Philippines. The dismissal of the petition
implies and means that there was no need of
naturalization for the applicant who is aFilipino
citizen.
Page 42 of 49
On 21 October 1941, a motion for
reconsideration was filed in both cases by the
Solicitor General. The latter contends that even
if the petitioner in the first case and the
applicant in the second were born in the
Philippines, of a Chines father and a Filipino
mother, lawfully married, still they are not
citizens of the Philippines under and pursuant to
the laws in force at the time of their birth, and
prays that both decisions be set aside and the
judgments appealed from be reversed. This
motion for reconsideration was pending in this
Court when the Pacific was broke out. During
the battle for liberation, the records of both
cases were destroyed. Upon petition of the
Assistant Solicitor General, Mr. Roberto A.
Gianzon, therecords were reconstituted in
accordance with the provisionsof Act. No. 3110.
The record of the first case, G.R. No. 47616,was
declared reconstituted on 5 June, and of the
second case, G.R. No. 47623, on 28 June 1946.
Upon these reconstituted records, we now
proceed to dispose of the motion for
reconsideration.
ISSUE:
WON the doctrine of jus soli applies in this case
HELD:(NO! THE PRINCIPLE OF JUS SOLI DOES
NOT APPLY)
this Court has held that the principle of jus soli
applies in this jurisdiction. It is embodied in the
Fourteenth Amendment to the Constitution of
the United States which provides that "All
persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the
state wherein they reside."
. While birth is an important element of
citizenship, it alone does not make a person a
citizen of the country of his birth. Youth spent in
the country; intimate and endearing association
with the citizens among whom he lives;
POLITICAL LAW REVIEW
knowledge and pride of the country's past;
belief in the greatness and security of its
institutions, in the loftiness of its ideals, and in
the ability of the country's government to
protect him, his children, and his earthly
possessions against perils from within and from
without; and his readiness to defend the
country against such perils, are some of the
important elements that would make a person
living in a country its citizen. Citizenship is a
political status. The citizen must be proud of his
citizenship. He should treasure and cherish it. In
the language of Mr. Chief Justice Fuller, "the
question of citizenship in a nation is of the most
vital importance. It is a precious heritage, as
well as an inestimable acquisition." (U.S. vs.
Wong Kim Ark, supra.) Citizenship, the main
integrate element of which is allegiance, must
not be taken lightly. Dual allegiance must be
discouraged and prevented. But the application
of the principle of jus soli to persons born in this
country of alien parentage would encourage
dual allegiance which in the long run would be
detrimental to both countries of which such
persons might claim to be citizens.
The pinciple of stare decisis does not mean
blind adherence to precedents. The doctrines or
rule laid down, which has been followed for
years, no matter how sound it may be, if found
to be contrary to law, must be abandoned. The
principleof stare decisis does not and should not
apply when there is conflict between the
precedent and the law. The duty of this Court is
to forsake and abandon any doctrine or rule
found to be in violation of the law in force.
It appears that the petitioner in the first case
was born in San Pablo, Laguna, in July 1915, of
a Chinese father and a Filipino mother, lawfully
married, left for China in 1925, and returned to
the Philippines on 25 January1940. The
applicant in the second case was born in Jolo,
Sulu, on 8 May 1900, of a Chinese father and a
Filipino mother. It does not appear whether
they were legally married, so in the absence of
proof to the contrary they are presumed to be
lawfully married. From the date of his birth up
to 16 November 1938, the date of filing of his
application for naturalization, and up to the
Page 43 of 49
date of hearing, he had been residing in the
Philippines. He is married to a Filipino woman
and has three children by her. He speaks the
local dialect and the Spanish and English
languages.
Considering that the common law principle or
rule of jus soli obtaining in England and in the
United States, as embodied in the Fourteenth
Amendment to the Constitution of the United
States, has never been entended to this
jurisdiction (section 1, Act of 1 July 1902; sec. 5,
Actof 29 August 1916); considering that the law
in force and applicable to the petitioner and the
applicant in the two cases at the time of their
birth is sec. 4 of the Philippine Bill (Act of 1 July
1902), as amended by Act of 23 March 1912,
which provides that only those "inhabitants of
the Philippine Islands continuing to reside
therein who were Spanish subjects on the 11th
day of April, 1899, and then resided in said
Islands, and their children born subsequent
thereto, shall be deemed and held to be
citizens of the Philippine Islands," we are of
the opinion and so hold that the petitioner in
the first case and the applicant in the second
case, who were born of alien parentage, were
not and are not, under saidsection, citizens of
the Philippine Islands.
Needless to say, this decision is not intended
or designed to deprive, as it cannot divest, of
their Filipino citizenship, those who had been
declared to be Filipino citizens, or upon whom
such citizenship had been conferred, by the
courts because of the doctrine or principle of
res adjudicata.
Accordingly, the decision of this Court in the
first case confirming the lower court's judgment
is set aside;
TECSON VS COMELEC
COMMENT ON CITIZENSHIP
POLITICAL LAW REVIEW
Citizenship is a treasured right conferred on
those whom the state believes are deserving of
the privilege. It is a precious heritage, as well
as an inestimable acquisition,[1] that cannot
be taken lightly by anyone - either by those
who enjoy it or by those who dispute it.
Before the Court are three consolidated cases,
all of which raise a single question of profound
importance to the nation. The issue of
citizenship is brought up to challenge the
qualifications of a presidential candidate to hold
the highest office of the land. Our people are
waiting for the judgment of the Court with
bated breath. Is Fernando Poe, Jr., the hero of
silver screen, and now one of the main
contenders for the presidency, a natural-born
Filipino or is he not?
FACTS:
Respondent Ronald Allan Kelly Poe, also known
as Fernando Poe, Jr. (FPJ) filed his certificate of
candidacy on 31 December 2003 for the
position of President of the Republic of the
Philippines in the forthcoming national
elections. In his certificate of candidacy, FPJ,
representing himself to be a natural-born citizen
of the Philippines, stated his name to be
"Fernando Jr.," or "Ronald Allan" Poe, his date
of birth to be 20 August 1939 and his place of
birth to be Manila.
Petitioner victorino Fornier filed before the
COMELEC a petition to disqualify FPJ and
cancel his certificate of candidacy by claiming
that FPJ is not a natural-born Filipino citizen,
his parents were foreigners: his mother, Bessie
Kelley Poe, was an American, and his father,
Allan Poe, was a Spanish national, being the
son of Lorenzo Pou, a Spanish subject.
The COMELEC dismissed the petition for lack of
merit.
Page 44 of 49
petitioner assailed the decision of the
COMELEC before this Court conformably with
Rule 64, in relation to Rule 65, of the Revised
Rules of Civil Procedure. The petition, docketed
G. R. No. 161824, likewise prayed for a
temporary restraining order, a writ of
preliminary injunction or any other resolution
that would stay the finality and/or execution of
the COMELEC resolutions.
The other petitions, later consolidated with G. R.
No. 161824, would include G. R. No. 161434,
entitled "Maria Jeanette C. Tecson, and Felix B.
Desiderio, Jr., vs. The Commission on Elections,
Ronald Allan Kelley Poe (a.k.a. Fernando Poe,
Jr.), and Victorino X. Fornier," and the other,
docketed G. R. No. 161634, entitled "Zoilo
Antonio G. Velez, vs. Ronald Allan Kelley Poe,
a.k.a. Fernando Poe, Jr.," both challenging the
jurisdiction of the COMELEC and asserting that,
under Article VII, Section 4, paragraph 7, of the
1987 Constitution, only the Supreme Court had
original and exclusive jurisdiction to resolve
the basic issue on the case.
ISSUE:
WON FPJ is a natural-born citizen of the
Philippines.
HELD:
the earliest understanding of citizenship was
that given by Aristotle, who, sometime in 384
to 322 B.C., described the "citizen" to refer to a
man who shared in the administration of
justice and in the holding of an office.[6]
Aristotle saw its significance if only to
determine the constituency of the "State,"
which he described as being composed of such
persons who would be adequate in number to
achieve a self-sufficient existence.[7] The
concept grew to include one who would both
govern and be governed, for which
qualifications like autonomy, judgment and
loyalty could be expected. Citizenship was seen
POLITICAL LAW REVIEW
to deal with rights and entitlements, on the one
hand, and with concomitant obligations, on the
other.[8] In its ideal setting, a citizen was active
in public life and fundamentally willing to
submit his private interests to the general
interest of society.
The concept of citizenship had undergone
changes over the centuries. In the 18th century,
the concept was limited, by and large, to civil
citizenship, which established the rights
necessary for individual freedom, such as rights
to property, personal liberty and justice.[9] Its
meaning expanded during the 19th century to
include political citizenship, which encompassed
the right to participate in the exercise of
political power.[10] The 20th century saw the
next stage of the development of social
citizenship, which laid emphasis on the right of
the citizen to economic well-being and social
security.[11] The idea of citizenship has gained
expression in the modern welfare state as it so
developed in Western Europe. An ongoing and
final stage of development, in keeping with the
rapidly shrinking global village, might well be
the internationalization of citizenship
Section 2, Article VII, of the 1987 Constitution
expresses:
"No person may be elected President unless he
is a natural-born citizen of the Philippines, a
registered voter, able to read and write, at
least forty years of age on the day of the
election, and a resident of the Philippines for
at least ten years immediately preceding such
election."
The term "natural-born citizens," is defined to
include "those who are citizens of the
Philippines from birth without having to
perform any act to acquire or perfect their
Philippine citizenship."[27]
The date, month and year of birth of FPJ
appeared to be 20 August 1939 during the
Page 45 of 49
regime of the 1935 Constitution. Through its
history, four modes of acquiring citizenship -
naturalization, jus soli, res judicata and jus
sanguinis[28] had been in vogue. Only two, i.e.,
jus soli and jus sanguinis, could qualify a
person to being a natural-born citizen of the
Philippines. Jus soli, per Roa vs. Collector of
Customs[29] (1912), did not last long. With the
adoption of the 1935 Constitution and the
reversal of Roa in Tan Chong vs. Secretary of
Labor[30] (1947), jus sanguinis or blood
relationship would now become the primary
basis of citizenship by birth.
Documentary evidence adduced by petitioner
would tend to indicate that the earliest
established direct ascendant of FPJ was his
paternal grandfather Lorenzo Pou, married to
Marta Reyes, the father of Allan F. Poe. While
the record of birth of Lorenzo Pou had not
been presented in evidence, his death
certificate, however, identified him to be a
Filipino, a resident of San Carlos, Pangasinan,
and 84 years old at the time of his death on 11
September 1954. The certificate of birth of the
father of FPJ, Allan F. Poe, showed that he was
born on 17 May 1915 to an Espaol father,
Lorenzo Pou, and a mestiza Espaol mother,
Marta Reyes. Introduced by petitioner was an
uncertified copy of a supposed certificate of
the alleged marriage of Allan F. Poe and Paulita
Gomez on 05 July 1936. The marriage
certificate of Allan F. Poe and Bessie Kelley
reflected the date of their marriage to be on 16
September 1940. In the same certificate, Allan
F. Poe was stated to be twenty-five years old,
unmarried, and a Filipino citizen, and Bessie
Kelley to be twenty-two years old, unmarried,
and an American citizen. The birth certificate
of FPJ, would disclose that he was born on 20
August 1939 to Allan F. Poe, a Filipino,
twenty-four years old, married to Bessie Kelly,
an American citizen, twenty-one years old and
married.
The death certificate of Lorenzo Pou would
indicate that he died on 11 September 1954, at
the age of 84 years, in San Carlos, Pangasinan. It
could thus be assumed that Lorenzo Pou was
born sometime in the year 1870 when the
POLITICAL LAW REVIEW
Philippines was still a colony of Spain. Petitioner
would argue that Lorenzo Pou was not in the
Philippines during the crucial period of from
1898 to 1902 considering that there was no
existing record about such fact in the Records
Management and Archives Office. Petitioner,
however, likewise failed to show that Lorenzo
Pou was at any other place during the same
period. In his death certificate, the residence of
Lorenzo Pou was stated to be San Carlos,
Pangasinan. In the absence of any evidence to
the contrary, it should be sound to conclude, or
at least to presume, that the place of residence
of a person at the time of his death was also his
residence before death. It would be extremely
doubtful if the Records Management and
Archives Office would have had complete
records of all residents of the Philippines from
1898 to 1902.
***Natural-born citizens are those who are
citizens of the Philippines from birth without
having to perform any act to acquire or perfect
their Philippine citizenship. Based on the
evidence presented which the Supreme
consider as viable is the fact that the death
certificate of Lorenzo Poe, father of Allan Poe,
who in turn was the father of private
respondent Fernando Poe, Jr. indicates that he
died on September 11, 1954 at the age of 84
years, in San Carlos, Pangasinan. Evidently, in
such death certificate, the residence of Lorenzo
Poe was stated to be San Carlos, Pangansinan.
In the absence of any evidence to the contrary,
it should be sound to conclude, or at least to
presume, that the place of residence of a
person at the time of his death was also his
residence before death. Considering that the
allegations of petitioners are not substantiated
with proof and since Lorenzo Poe may have
been benefited from the “en masse
Filipinization” that the Philippine Bill had
effected in 1902, there is no doubt that Allan
Poe father of private respondent Fernando Poe,
Jr. was a Filipino citizen. And, since the latter
was born on August 20, 1939, governed under
1935 Constitution, which constitution
considers as citizens of the Philippines those
whose fathers are citizens of the Philippines,
Fernando Poe, Jr. was in fact a natural-born
Page 46 of 49
citizen of the Philippines regardless of whether
or not he is legitimate or illegitimate.
BENGSON VS HRET AND CRUZ
FACTS:
The citizenship of respondent Cruz is at issue in
this case, in view of the constitutional
requirement that “no person shall be a
Member of the House of Representatives
unless he is a natural-born citizen.”
Cruz was a natural-born citizen of the
Philippines. He was born in Tarlac in 1960 of
Filipino parents. In 1985, however, Cruz enlisted
in the US Marine Corps and without the
consent of the Republic of the Philippines, took
an oath of allegiance to the USA. As a
Consequence, he lost his Filipino citizenship for
under CA No. 63 [(An Act Providing for the
Ways in Which Philippine Citizenship May Be
Lost or Reacquired (1936)] section 1(4), a
Filipino citizen may lose his citizenship by,
among other, “rendering service to or accepting
commission in the armed forces of a foreign
country.”
Whatever doubt that remained regarding his
loss of Philippine citizenship was erased by his
naturalization as a U.S. citizen in 1990, in
connection with his service in the U.S. Marine
Corps.
In 1994, Cruz reacquired his Philippine
citizenship through repatriation under RA 2630
[(An Act Providing for Reacquisition of
Philippine Citizenship by Persons Who Lost
Such Citizenship by Rendering Service To, or
Accepting Commission In, the Armed Forces of
the United States (1960)]. He ran for and was
elected as the Representative of the 2nd District
of Pangasinan in the 1998 elections. He won
over petitioner Bengson who was then running
for reelection.
POLITICAL LAW REVIEW
Subsequently, petitioner filed a case for Quo
Warranto Ad Cautelam with respondent HRET
claiming that Cruz was not qualified to become
a member of the HOR since he is not a
natural-born citizen as required under Article
VI, section 6 of the Constitution.
HRET rendered its decision dismissing the
petition for quo warranto and declaring Cruz
the duly elected Representative in the said
election.
ISSUE:
WON Cruz, a natural-born Filipino who became
an American citizen, can still be considered a
natural-born Filipino upon his reacquisition of
Philippine citizenship.
HELD:
petition dismissed
YES
Filipino citizens who have lost their citizenship
may however reacquire the same in the manner
provided by law. C.A. No. 63 enumerates the 3
modes by which Philippine citizenship may be
reacquired by a former citizen:
1. by naturalization,
2. by repatriation, and
3. by direct act of Congress.
**
Repatriation may be had under various statutes
by those who lost their citizenship due to:
Page 47 of 49
1. desertion of the armed forces;
2. services in the armed forces of the allied
forces in World War II;
3. service in the Armed Forces of the United
States at any other time,
4. marriage of a Filipino woman to an alien; and
5. political economic necessity
Repatriation results in the recovery of the
original nationality This means that a
naturalized Filipino who lost his citizenship will
be restored to his prior status as a naturalized
Filipino citizen. On the other hand, if he was
originally a natural-born citizen before he lost
his Philippine citizenship, he will be restored to
his former status as a natural-born Filipino.
R.A. No. 2630 provides:
Sec 1. Any person who had lost his Philippine
citizenship by rendering service to, or accepting
commission in, the Armed Forces of the United
States, or after separation from the Armed
Forces of the United States, acquired United
States citizenship, may reacquire Philippine
citizenship by taking an oath of allegiance to
the Republic of the Philippines and registering
the same with Local Civil Registry in the place
where he resides or last resided in the
Philippines. The said oath of allegiance shall
contain a renunciation of any other citizenship.
Having thus taken the required oath of
allegiance to the Republic and having
registered the same in the Civil Registry of
Magantarem, Pangasinan in accordance with
the aforecited provision, Cruz is deemed to
have recovered his original status as a
natural-born citizen, a status which he
acquired at birth as the son of a Filipino father.
It bears stressing that the act of repatriation
allows him to recover, or return to, his original
status before he lost his Philippine citizenship.
REPUBLIC VS SAGUN
POLITICAL LAW REVIEW
FACTS:
Respondent Nora fe Sagun is the legitimate
child of father, Albert Chan a Chinese national,
and mother Marta Borromeo, a Filipino citizen.
She was born on August 8, 1959 in Baguio She
did not elect for Philippine citizenship upon
reaching the age of majority. At the age of 33,
she executed an Oath of Allegiance to the
Republic of the Philippines. The document was
notarized but was not recorded and registered
with the Local Civil Registrar of Baguio City. In
2005, she applied for a Philippine passport but
was denied due to the citizenship of her father
and there being no annotation on her birth
certificate that she has elected Philippine
citizenship. Consequently, she sought a
judicial declaration of her election of Philippine
citizenship and prayed that the Local Civil
Registrar of Baguio City be ordered to annotate
the same on her birth certificate.
ISSUE:
WON respondent’s petition for declaration of
election of Philippine citizenship is authorized
by the Rules of Court and jurisprudence; and
WON the respondent has effectively elected
Philippine citizenship in accordance with the
procedure prescribed by law
HELD:
1.) Yes. But it should be stressed that there
is no specific statutory or procedural rule which
authorizes the direct filing of a petition for
declaration of election of Philippine citizenship
before the courts. Respondent cannot now be
allowed to seek the intervention of the court to
confer upon her Philippine citizenship when
clearly she has failed to validly elect Philippine
citizenship.
Page 48 of 49
For sure, this Court has consistently ruled that
there is no proceeding established by law, or
the Rules for the judicial declaration of the
citizenship of an individual.[13] There is no
specific legislation authorizing the institution of
a judicial proceeding to declare that a given
person is part of our citizenry.[14] This was our
ruling in Yung Uan Chu v. Republic[15] citing the
early case of Tan v. Republic of the
Philippines,[16] where we clearly stated:
Under our laws, there can be no action or
proceeding for the judicial declaration of the
citizenship of an individual. Courts of justice
exist for settlement of justiciable controversies,
which imply a given right, legally demandable
and enforceable, an act or omission violative of
said right, and a remedy, granted or sanctioned
by law, for said breach of right. As an incident
only of the adjudication of the rights of the
parties to a controversy, the court may pass
upon, and make a pronouncement relative to
their status. Otherwise, such a pronouncement
is beyond judicial power. x x x
Clearly, it was erroneous for the trial court to
make a specific declaration of respondents
Filipino citizenship as such pronouncement was
not within the courts competence.
2.) No. Based on the foregoing
circumstances, respondent clearly failed to
comply with the procedural requirements for a
valid and effective election of Philippine
citizenship. Respondent cannot assert that the
exercise of suffrage and the participation in
election exercises constitutes a positive act of
election of Philippine citizenship since the law
specifically lays down the requirements for
acquisition of citizenship by election.All that is
required of the elector is to execute an
affidavit of election of Philippinecitizenship
and, thereafter, file the same with the nearest
civil registry. Having failed to comply with
the foregoing requirements, respondent’s
petition before the trial court must be denied.
Based on the foregoing, the statutory
formalities of electing Philippine citizenship are:
POLITICAL LAW REVIEW Page 49 of 49

(1) a statement of election under oath; (2) an allegiance suffices, its execution was not within
oath of allegiance to the Constitution and a reasonable time after respondent attained
Government of the Philippines; and (3) the age of majority and was not registered
registration of the statement of election and of with the nearest civil registry as required under
the oath with the nearest civil registry.[23] Section 1 of C.A. No. 625. The phrase
reasonable time has been interpreted to mean
Furthermore, no election of Philippine
that the election should be made generally
citizenship shall be accepted for registration
within three (3) years from reaching the age of
under C.A. No. 625 unless the party exercising
majority.[27] Moreover, there was no
the right of election has complied with the
satisfactory explanation proffered by
requirements of the Alien Registration Act of
respondent for the delay and the failure to
1950. In other words, he should first be
register with the nearest local civil registry.
required to register as an alien.[24] Pertinently,
the person electing Philippine citizenship is Based on the foregoing circumstances,
required to file a petition with the Commission respondent clearly failed to comply with the
of Immigration and Deportation (now Bureau procedural requirements for a valid and
of Immigration) for the cancellation of his alien effective election of Philippine citizenship.
certificate of registration based on his Respondent cannot assert that the exercise of
aforesaid election of Philippine citizenship and suffrage and the participation in election
said Office will initially decide, based on the exercises constitutes a positive act of election
evidence presented the validity or invalidity of of Philippine citizenship since the law
said election.[25] Afterwards, the same is specifically lays down the requirements for
elevated to the Ministry (now Department) of acquisition of citizenship by election. The mere
Justice for final determination and review.[26] exercise of suffrage, continuous and
uninterrupted stay in the Philippines, and
It should be stressed that there is no specific
other similar acts showing exercise of
statutory or procedural rule which authorizes
Philippine citizenship cannot take the place of
the direct filing of a petition for declaration of
election of Philippine citizenship. Hence,
election of Philippine citizenship before the
respondent cannot now be allowed to seek the
courts. The special proceeding provided under
intervention of the court to confer upon her
Section 2, Rule 108 of the Rules of Court on
Philippine citizenship when clearly she has
Cancellation or Correction of Entries in the Civil
failed to validly elect Philippine citizenship. As
Registry, merely allows any interested party to
we held in Ching,[28] the prescribed procedure
file an action for cancellation or correction of
in electing Philippine citizenship is certainly not
entry in the civil registry, i.e., election, loss and
a tedious and painstaking process. All that is
recovery of citizenship, which is not the relief
required of the elector is to execute an
prayed for by the respondent.
affidavit of election of Philippine citizenship
Be that as it may, even if we set aside this and, thereafter, file the same with the nearest
procedural infirmity, still the trial courts civil registry. Having failed to comply with the
conclusion that respondent duly elected foregoing requirements, respondents petition
Philippine citizenship is erroneous since the before the trial court must be denied.
records undisputably show that respondent
failed to comply with the legal requirements
for a valid election. Specifically, respondent had
not executed a sworn statement of her election
of Philippine citizenship. The only documentary
evidence submitted by respondent in support
of her claim of alleged election was her oath of
allegiance, executed 12 years after she reached
the age of majority, which was unregistered.
As aptly pointed out by the petitioner, even
assuming arguendo that respondents oath of