SESSION

04
Outline

I. Cont. from last week’s assignment

a. There must be an actual case or controversy

b. The constitutional question must be raised by the proper party

c. The constitutional question must be raised at the earliest possible
opportunity
• The earliest opportunity to raise a constitutional issue is to
raise it in the pleadings (Matibag vs. Benipayo, GR 149036,
April 2, 2002)
o However –
§ In criminal cases, the question can be raised at
any time at the discretion of the court;
§ In civil cases, the question can be raised at any
stage of the proceeding if necessary for the
determination of the case itself;
§ In every case, except when there is estoppel, it
can be raised at any stage if it involves the
jurisdiction of the court.

d. The decision on the constitutional question must be determinative
of the case itself
• Constitutional issue must be the lis mota of the case;
• Lis mota – literally “cause of the suit of action”
• Rationale: Principle of Separation of Powers – which demands
that proper respect be accorded to other departments and
thus, courts are loathe to decide constitutional questions as
long as there is some other basis that can be used for a
decision;
o Offshoot of presumption of validity accorded executive
and legislative acts;
o Kalipunan ng Damay ang Mahihirap vs. Robredo, GR
200903, July 22, 2014;

II. EFFECTS OF DECLARATION OF UNCONSTITUTIONALITY

1. Orthodox view – it is inoperative, as if it had not been passed at all;

2. Modern view –
a. Court may refuse to recognize the law;
• But the actual existence of the statute, prior to such a
determination of unconstitutionality, is an operative fact and
may have consequences which cannot justly be ignored
(otherwise it will result in inequity and injustice).
o Operative Fact Doctrine
o Araullo vs. Aquino, GR 209287, July 1, 2014
§ Beneficiaries cannot be asked to return what
they received;
§ But the doctrine cannot be applied to the
authors, implementors and proponents of DAP,
if it should be found in the appropriate
tribunals that they did not act in good faith.

 3. Partial unconstitutionality –
a. Legislature must be willing to retain the valid portion usually shown
by the presence of a separability clause in the law;
b. Valid portion can stand independently as a law.

III. THE PHILIPPINES AS A STATE

1. State – community of persons, more or less numerous, permanently
occupying a definite portion of territory, independent of external control, and
possessing a government to which a great body of inhabitants render
habitual obedience;

2. Distinguished from Nation – state is a legal or juristic concept; while nation is
an ethnic or racial concept;

3. Distinguished form Government – government is merely an instrumentality
of the State through which the will of the State is implemented and realized;

4. Elements:

a. People

b. Territory

• National Territory (Art. I)

o Philippine Archipelago with all the islands and waters
embraced therein
§ Treaty of Paris (bet. Spain and US – rectangular
area)
§ Treaty in Washington (Cagayan de Sulu and
Islands of Sibutu);
§ Treaty bet. UK and US (Turtle and Mangsee
Islands);

o All other territories over which the Philippines has
sovereignty or jurisdiction
§ Batanes (under 1935 constitution)
§ Belonging to Phils. by historic or legal title
(under 1973 constitution)
§ Sabah (RA 5446)
§ Kalaayaan Island Groups ((PD1596)

• Maritime Zones (UNCLOS)

o Territorial Sea (12NM)
o Contigous Zone (24NM)
o Exclusive Economic Zone (200NM)
o Constinental Shelf (200NM; extended 350NM)
o High Seas – Freedom of Navigation

• Other concepts:

o Archipelagic Doctrine – based on the principle that an
archipelago which consists of a number of islands
separated by bodies of water should be treated as one
integral unit and the waters inside the baselines are
considered as:
 § Under the constitution – internal waters
§ Under UNCLOS – archipelagic waters

o Straight baseline method – imaginary straight lines are
drawn joining the outermost points of the outermost
islands of the archipelago. Some limitations:

§ The drawing of baselines shall not depart to
any appreciable extent from the general
configuration of the archipelago;

§ The length of the baselines shall not exceed
100NM save for 3% of the total number of
baselines which can reach up to 125 NM;

o Warships – sovereign immunity, subject to UNCLOS:

§ Art. 30 – non-compliance by warships with the
laws and regulations of the coastal state; and

§ Art. 31 – international responsibility -
responsibility of flag state for damages caused
by a warship or other government ship
operated for non-commercial purposes

- Even if offending warship is a non-party
to UNCLOS (Arigo vs. Swift, GR 206510,
Sept. 16, 2014)

o Constitutionality of RA 9522 (Philippine Baseline Law)
– Magallona vs. Ermita, GR 187167, August 16, 2011)

c. Government – agency or instrumentality through which the will of
the State is formulated, expressed and realized.

• Functions: constituent (governmental - compulsory) and
ministrant (proprietary - optional) - classification now
obsolete;

• Doctrine of Parens Patriae (parent of the people) – the
Government may act as guardian of the rights of people who
may be disadvantaged or are suffering from some disability or
misfortune (Cabanas vs. Pilapil, GR L-25843, July 25, 1974).

• Classification of Governments –

o De Jure (Aquino government after EDSA 1 was
considered De Jure) vs. De Facto;

o Presidential (there is separation of powers) vs.
Parliamentary (fusion of executive and legislative
powers in the parliament, although the actual exercise
of executive powers is vested in a prime minister who is
chosen by, and accountable to, parliament;

o Unitary (government is centralized with powers over
both internal and external affairs of state) vs. Federal
(it consists of autonomous states merged into a single
 state, with the national government exercising a limited
degree of power over the domestic affairs, with
generally full direction of the external affairs of the
state).

d. Sovereignty – supreme and uncontrollable power inherent in a State
by which that State is governed.

• Dominium (capacity to own or acquire property, including
lands held by the State in its proprietary capacity) vs.
Imperium (authority possessed by the State embraced in the
concept of sovereignty).

• Jurisdiction in the concept of sovereignty –

o Territorial jurisdiction – power of the State over
persons and things within its territory;

§ Exempted are:

- Foreign states, head of states, diplomatic
representatives and consuls;

- Foreign state property including
embassies, consulates and public vessels
engaged in non-commercial activities;

- Act of State

- Foreign merchant vessels exercising right
of innocent passage or stationed in its
territory with permission;

- Such other organizations, e.g. UN, etc.

o Extraterritorial jurisdiction – power exercised by the
State beyond its territory (e.g. jurisdiction over its
nationals abroad; see Nachura, p.46)

e. “Fifth element” as to Recognition by other States

• Constitutive theory – a state is only a state when it is
recognized as such by other states;

• Declaratory theory – according to Montevideo Convention,
statehood is independent of recognition by other states (it is a
state as long as it posses the 4 elements).

IV. STATE IMMUNITY FROM SUIT

1. Sec. 3 Art. XVI – The State cannot be sued without its consent;

2. Basis: There can be no legal right against the authority which makes the law
on which the right depends; but it may be sued if it gives consent, whether
express or implied;

 3. Also known as the Royal Prerogative of Dishonesty - because of the
privilege it grants the state to defeat any legitimate claim against it by simply
invoking its non- suability.
4. Who are immune from suit?

a. Republic of the Philippines– Republic vs. Villasor, GR L-30671, Nov.
28, 1973;

b. Foreign States (under the principle of sovereign equality of states or
par in parem non habet imperium – contrary disposition would
unduly vex the peace of nations) –
• Syquia vs. Almeda, GR L-1648, Aug. 17, 1949;
• Minucher vs. CA, GR 142396, Feb. 11, 2003;
• Arigo vs. Swift, GR 206510, Sept. 16, 2014)

c. UN and other specialized agencies – Lasco vs. UNRFNRE, GR
109095-109107, Feb. 23, 1995;

d. Certain international organizations - Callado vs. IRRI, GR 106483,
May 22, 1995;

5. Tests to determine if suit is against the State –

a. If suit was filed against government officers:

• Suit will not prosper if ultimate liability will fall on the
government (such as appropriation of needed amount to
satisfy judgment) provided that the officers acted in the
discharge of their duties within the scope of their authority -
Calub and Valencia vs. CA, GR 115634, April 27, 2000;

• Suit will prosper if ultimate liability will fall on the officer -
Ruiz vs. Cabahug, GR L-9990, Sept. 30, 1957;

o Unauthorized acts of government officers are not acts of
State;

b. If suit was filed against a government agency:

• If such agency is incorporated (i.e., it has a juridical
personality), look into its charter -

o Suit will prosper if its charter provides that it can sue
and be sued -

§ One of the corporate powers of LGUs under the
local government code is to sue and be sued
(Municipality of San Fernando La Union vs.
Judge Firme, GR L-52179, April 8, 1991);

• If such agency is unincorporated (i.e., it has no juridical
personality independent of the government), look into the
principal function of the agency –

o Suit will prosper if the principal function is proprietary
(jus gestionis) – Civil Aeronautics Administration vs. CA,
GR L-51806, Nov. 8, 1988;

 § Exception: suit will not prosper when the
subject act was a necessary incident to its
governmental function - Mobil Philippines
Exploration Inc. vs. Customs Arrastre Service,
GR L-23139, Dec. 17, 1966;

o Suit will not prosper if the principal function is
governmental (jus imperii) - Bureau of Printing vs.
Bureau of Printing Employees Association, GR L-15751,
Jan. 28, 1961;

6. Need for consent – lack of consent may be invoked as a defense at any stage
of the proceeding (since waiver of immunity, being in derogation of
sovereignty, must be construed in strictissimi juris);

a. Forms of consent –

• Express – through a legislative act

o General law – e.g. CA 327, as amended by PD 1445 –
requires that all money claims against the government
must first be filed with the Commission on Audit before
suit is instituted in court. Sayson vs. Singzon, GR L-
30044, Dec. 19, 1973;

§ Exception- must not perpetrate an injustice -
Amigable vs. Cuenca, GR L-26400, Feb. 29,
1972;

o Special Law – must be embodied in statute and cannot
be given by mere counsel (Republic vs. Purisima, GR L-
36084, December 31, 1977);

• Implied

o When the State itself commences litigation, it becomes
vulnerable to counterclaim (Republic vs. Sandigan-
bayan, GR 129406, March 6, 2006);

o When the State enters into private contract –
§ U.S. vs. Ruiz, GR L-35645, May 22, 1985;
§ U.S. vs. Guinto, GR 76607, Feb. 26, 1990;

§ Note: Restrictive application of state immunity
(with regard to Foreign States) – under
international law – it has been necessary to
distinguish between sovereign and
governmental acts (jure imperii) and private,
commercial and proprietary acts (jure
gestionis). The result is that State immunity
now extends only to acts jure imperii

7. Scope of Consent – consent to be sued does not include consent to the
execution of judgment against it!

a. Such execution of judgment will require another waiver, because the
power of the court ends when the judgment is rendered, since
government funds and properties may not be seized under writs of
 execution or garnishment, unless such disbursement is covered by
the corresponding appropriation as required by law;

• All government funds may not be subject to garnishment or
levy in the absence of any corresponding appropriation as
required by law (City of Caloocan vs. Allarde, GR 107271,
September 10, 2003);

o When there is no appropriation ordinance, the remedy
is to file mandamus to compel the enactment and
approval of the necessary appropriation ordinance and
the corresponding disbursement of municipal funds to
satisfy the money judgment;

• But again, before execution can be had, a claim for payment of
the judgment award must first be filed with COA!

o Execution of monetary judgment is within the primary
jurisdiction of COA (UP vs. Dizon, GR 171182, August
23, 2012);

8. Suability not equated with liability – liability will have to be determined by
the court on the basis of the evidence and the applicable law (NIA vs. CA, GR
129169, November 17, 1999).