Current issues: SATURNINO OCAMPO VS REAL

ADMIRAL ERNESTO ENRIQUEZ:

1. Proposal of the last phrase of National
Anthem: SC: Dismissed the petition.
2. Change the design of the Flag –
When Pres. Duterte finally allowed the burial of
3. Change of color of the flag
late Pres. Marcos to the Libingan ng mga Bayani.
What provision are involved there?
Part of his campaign promise – and eventually
Sec 1. – Change of the design of the flag that will was made.
require an amendment of the constitution.
SC: Petitioner failed to prove that the Pres.
The flag of the Philippines shall be red, white, and Gravely abused his discretion.
blue, with a sun and three stars, as consecrated
The burden of proving is on the petitioners and
and honored by the people and recognized by law.
they were not able to prove that.
Instead of 8 rays change to 9 rays – this involves
SC. Here used the political question doctrine.
amendment. [Article 17 on amendment and
revision] This doctrine was not applied to Sereno, she was
appointed CJ on 2012. Calida filed the petition on
National anthem Sec 2:
2018.
The Congress may, by law, adopt a new name for
Before she was appointed CJ she among those
the country, a national anthem, or a national seal,
nominated by the JBC as CJ. JBC is a special
which shall all be truly reflective and symbolic of
body created by the constitution to screen
the ideals, history, and traditions of the people.
nominees to judicial positions including that of
Such law shall take effect only upon its
the ombudsman. She was properly screened
ratification by the people in a national
there.
referendum.
In effect did the JBC committed grave abuse of
Ratified by referendum not through a plebiscite.
discretion when they recommended there? And
Changing the name of the country, anthem and from those nominated by the JBC Pres. Noynoy
national seal – what is required here is a law but exercised his discretion to choose from those
this has to be ratified by majority of votes cast by nominated. Bakit ganun?
the people in a national referendum for that
purpose. BINUYA CASE:
Case regarding comfort women.1
JUDICIAL POWER:
Peace treaty with Japan – Japan formally
1. Duty – Traditional concept of judicial
apologized to the Phil and the Filipino people for
power
the atrocities that was committed by their soldiers
2. Expanded power of judicial review
also Japan agreed to make reparation payments to
3. Political question.
us in exchange the Phil. Waive future claims
BURIAL OF PRES. MARCOS AT THE against Japan.
LIBINGAN NG MGA BAYANI:
More than 60 years later, the surviving comfort
women went to the Pres. GMA and wanted her to
spouse their claims against Japan. (Apologize and

1
1:08:28
make reparation payments to them) GMA
declined.
They went to the S.C and raised their issue.
ISSUE: May the S.C take up the cause of these
comfort women?
SC: We cannot compel her that was a political
question. (2nd type) In matters of foreign policy
the judiciary and the executive must be in one
voice.
LOCUS STANDI:
OPOSA CASE: Liberalization of Locus Standi
Article 2 Section 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.
Intergenerational responsibility – 1:47:38
RESIDENT MARINE MAMALS CASE:
1:54:27 – Ruling of court.
After all, in their petition they were joined by
human beings as steward of nature and under
Section 5 on the rules of enforcement of
environmental laws -citizen suit – any citizen
may file a petition in court for the enforcement of
environmental laws.
In OPOSA the minors were represented by
their parents that made them proper parties in
court.
RULE MAKING POWER:
GSIS CASE:
GSIS don’t want to pay docket fees, taxes,
assessments etc. claiming exemption under its
charter.
SC: This cannot operate to exempt them from
payment of legal fees.
1987 constitution – the S.C has the sole power to
promulgate rules concerning pleading, practice
and procedure in all courts.
Distinguish: Judicial legislation from rule making
power: 2:08:00
Appointment of judges and justice: 2:11:08
PART 2: AMENDMENT- NATIONAL
TERRITORY:
Composition of the S.C 2:12
Q. May a division of S.C laid down a doctrine or
principle of law? (2:35)
A. Yes, Section 4 para.3 last proviso of Art 8.
AMENDMENTS OR REVISION
Change the design of flag – 8 rays to 9 rays- this
would involve Sec. 1 of Art 16 – amendment.
30:33
We have 15 Justices, if there is 1 vacancy in the
S.C, and there was a case decided by the S.C and
voting was 7-7?
CASE: ISAGANI CRUZ CASE – 31:18
Constitutionality of IFRA was upheld, the
petitioner was not able to overcome the
presumption of constitutionality – since it was a
law enacted by congress. 7-7 = constitutionality
was upheld.
ARTICLE 1: 33:16
NATIONAL TERRITORY:
The national territory comprises the Philippine
archipelago, with all the islands and waters
embraced therein, and all other territories over
which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial,
and aerial domains, including its territorial sea,
the seabed, the subsoil, the insular shelves, and
other submarine areas. The waters around,
between, and connecting the islands of the
archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the
Philippines.
What comprises the national territory of the Phil?
1. Phil. Archipelago
2. And all other territories over which the
Philippines has sovereignty or
jurisdiction.
Would you consider Kalyaan Islands as part of
the Phil. Archipelago?
No. But it is part of our national territory under
all other territories over which the Phil. Has
sovereignty or j. (Soldiers, elections)
Phil Archipelago: 42:00
49:00
The waters ABC:
The waters around, between, and connecting the
islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal
waters of the Philippines.
50:00
No innocent passage in internal waters. Waters
ABC …
52:39:
Component of state in international law?
1. Terrestrial or land domain
2. Marital or fluvial domain
3. Aerial domain
TERRESTRIAL AND LAND DOMAIN:
Two important matters:
1. Internal waters of state – rivers, lakes,
canals, ports and harbors.
Right of innocent passage - refers to the
continuous and expeditious navigation of foreign
vessel in the territorial sea of another state
without entering the internal waters.
Foreign vessel cannot enter internal waters
invoking right of innocent passage. They can only
invoke arrival under stress.
Ships taking shelter from storm can invoke that.
Or refuel or reprovision.
2. Modes of acquiring or diminishing
territory in international law.
a. Discovery or occupation of territory
which is Terra Nullus. (Land belonging
to no one) – Original mode of acquiring
territory.
Doctrine of effective occupation – discovery
alone is not enough it merely gives the discoverer
an inchoate right over the territory. For title to be
vested to the discoverer the discovery must be
followed, within a reasonable time, by effective
occupation and acquisition of that territory.
b. Derivative mode - Cessation – when one
state gives cease another territory in
favor of another state in a treaty.
(Luisiana)
c. Prescription
d. Accretion – the accessory follows the
principal.
Conquest and subjugation – obsolete.
MARITAL OR FLUVIAL DOMAIN:
What are the various regimes in marital or fluvial
domain of the state? These are the Sea based
rights.
1. Regime of the territorial sea – 12 nautical
miles from the baseline. We have a state
has sovereignty.
2. Regime of the Contiguous zone -24
nautical miles from the baseline.
Jurisdiction to enforce, CFIS (Customs,
Fiscal, Immigration and sanitary laws)
3. Regime of the exclusive economic zone
and the continental shelf. – 200 nautical
miles from the baseline. (Sovereign
right to exploit the resources both living
and non-living resources of the sea, sea
bed and the sub soil)
Continental shelf – submerged area, the seabed,
subsoil and other submarine areas up to the extent
of the continental margin.
Territorial sea – here comes innocent passage.
Right of innocent passage - refers to the
continuous and expeditious navigation of foreign
vessel in the territorial sea of another state
without entering the internal waters
Passage is innocent if it will not compromise the
peace, good order and the security of the coastal
state.
Beyond the 200 miles of the EZZ is the high seas,
the international waters. The legal status of this
is res commones (Thing belonging to everyone)
-cannot be appropriate by any state they form part
of common heritage of mankind, since it belongs
to everyone you cannot deprive others of
ownership of that, as distinguish to res nullus
(thing belonging to no one – it can be
appropriated)
Recent events:
When China through reclamation made artificial
islands to the South China Sea in effect they are
appropriating it this is part of the high seas this is
res commones!
For that matter what is the regime covering the
high seas?
The regime is freedom of the high seas. Mare
Liberum. (Mare – sea)
What are the basic freedoms in the high seas?
1. Freedom of navigation over flights
2. Fishing
3. Mining
4. Laying down of underwater cables
5. Freedom to do scientific research.
Any state can undertake those acts.
Freedom of navigation over flights:
Who has J. over a vessel when it is sailing in the
high seas? Only the flag state – it is the nationality
where the vessel came. The nationality of the
vessel is det. In its registration.
If the vessel is registered in the Phil. The flag state
is the Phil.
EXCEPTIONS:
1. If the vessel is a pirate ship – any state
can assume J. pirates are enemies of all
mankind.
2. If the vessel is engaged in slave trade
3. If the vessel is sailing without any flag at
all or sailing under a false flag or it refuse
to show its flag when it is required to do
so.
4. If the vessel is engaged in unauthorized
broadcast directed against another state.
5. Doctrine of hot pursuit – do not confuse
this on arrest in hot pursuit what is
arrested here is a person.
In Doctrine in hot pursuit it is under international
law the one pursued here is a vessel.
Application of Doctrine of hot pursuit: 1:27:53
(Part 2)
Vessel entered territorial sea or contiguous zone
and you have reasonable belief that such vessel
committed a violation of the domestic laws a state
can pursue him even in the high seas.
However there is an important requirement, the
pursuit one commenced must be continuous
and uninterrupted.
PART 3:
AERIAL DOMAIN:
Are above the subjacent state that is the Aerial
Domain.
What is the extent? From the extent of the
territorial sea the area UPWARD (vertical) that is
the Areal domain.
Important: The state has absolute sovereignty
over the areal domain.
Q. May a commercial aircraft pass through your
Aerial domain invoking the right of innocent
passage?
A. No, there is no such thing as right of innocent Petitioner challenge the constitutionality of this
passage in the aerial domain of the state because law on the ground that it diminishes our national
the right of innocent passage may be invoked territory.
only by foreign vessel when passing through or
Panatag Shoal – outside of the baseline! 18:00
traversing through territorial sea of the state, and
this forms part of the marital domain. SC: It even increased our national territory. This
has nothing to do with the acquisition or division
In the aerial domain the state has absolute
territory in international law it is a statutory tool
sovereignty of the aerial domain.
demarcating our maritime base line as
We allow commercial aircrafts to pass through archipelagic state.
because of treaty. (WARSAW CONVENTION
Why Kalayan outside baselines?
AIR TRAVEL) outside that treaty they cannot.
In this law, they are referred to as adjacent
Beyond the aerial domain we will find outer
territories whose islands generate their respective
space. The regime of this is similar to the high
maritime zones.
seas, res commones not susceptible of
appropriation of any state. 20:00 Why the congress did not include the
adjacent territories? (Sen. Miriam is the
1979 Bar: When the US astronauts landed on the
proponent)
moon may they lay claim over the moon? No!
because they are res commones. Because if we include that it will violate the
UNCLOS itself and other states will not respect
In the relevant outer space treaties outer space is
that. You will claim a huge chunk of the South
to be used only for peaceful purposes it is
China Sea itself. (go back here in the audio)
prohibited to send weapons of mass of
destruction to outer space. SCARBOROUGH SHOAL:
Also in this treaty, astronauts are regarded as 124 nautical miles from Zambales we have
ambassadors human kind. We have the position sovereign right to exploit and explore natural
of rendering assistance to astronauts in distress resources there it is within our 200 Nautical
regardless of their nationality. miles.
Recent issue: BENHAM RISE:
When China made artificial islands in the South East of Luzon. Chinese vessel stayed there for a
China Sea and fortify the islands militarily, when long period of time! It is not continuous and
the American vessel pass through those artificial expeditious!
islands. China: “Go away! You are intruding to
our territory!” American Vessel: “We are UN recognized Benham Rise as extended
exercising our freedom of navigation; we sail continental shelves.
whenever international law allows us to”
MAGALLONA VS ERMITA: (12:48 part 3)
R.A 9522 – Maritime baseline law of the Phil.
(March 2009)
Significance: Notice to the whole world of our
marital baselines. Therefore, foreign states would
have to respect those baselines.
DOCTRINE OF STATE IMMUNITY FROM
SUIT: 35:11 PART 3
There can be no legal right as against the
authority that makes the law upon which the right
depends.
Royal prerogative of dishonesty.
Under BP 880 what is the policy of the law in
dealing with rallies, public assemblies and even
in the dispersal thereof? MAXIMUM
TOLERANCE.
Maximum Tolerance – the highest degree of
restraint that the police military the peace giving
officers must observed in dealing with the rallies,
public assemblies and even dispersal thereof.
Under this policy, for as long as the
demonstrators are unarmed and they do not
exceeded overt acts of violence let them be that is
part of their freedom of assembly.
After all what do you expect in a participant of a
rally? This tends to be unruly!
Rule in BP 880:
1. 1st secure a permit to the local mayors.
Exception: Without permit can rally:
a. Rally in a private place – only required is
the consent of the owner of the private
place.
b. Campus of the state – only required is the
authority of the college or state.
c. Freedom Park
For that matter all cities are mandated by BP 880
to designate a freedom park where people can
hold a rally even without a permit.
In Manila – Liwasan Bonifacio. Mendiola – not a
designated freedom park but you must get a
permit.
Ex. P.O – sexual harassment not in official
capacity but in his personal capacity.
ARIGO VS SWIFT: 1:11:00 (PART 3)
Writ of Kalikasan and demand for compensation
for the damage to the coral reefs.
Will the petition prosper?
USS Guardian – American naval vessel and
under customary naval law, foreign naval vessel,
foreign embassies are considered to be extension
of the state where they belong (Principle of
exterritoriality)
In effect the writ of kalikasan is directed against
the American government.
The petition did not prosper on the ground of lack
of jurisdiction because of the application of the
doctrine of sovereign equality of all states (par in
parem non habeat imperium) besides they are
suing them under the performance of their duties.
The rule is that doctrine of immunity from suit
applies to government officials under their
official functions.
Petitioner – there is waiver on the part of the
American govt. citing the provision on the VFA
(1998) under this VFA if an American soldier
commits an offense in the Phil. It will have to
heard by Phil. Courts under Phil laws.
Court did not agree. The waiver in VFA is a
waiver on criminal jurisdiction. That waiver did
not include special civil action of Writ of
Kalikasan.
What about demand for compensation? That has
been rendered moot and academic. The U.S govt.
has already signified to pay damages as expressed
by the American Embassy in the Phil.
PART 4: