Bar Q and A #42

Under Section 4(2), Article XIV of the Constitution, no group of aliens shall comprise more than one-third of the enrollment in any school. The exception refers to schools established for foreign diplomatic personnel and their dependents and, unless otherwise provided by law, for other foreign temporary residents.

Educational institutions may accept donations from foreign students. No provision in the Constitution or any law prohibits it.

The students cannot be expelled from school. As held in Ebralinag v. The Division Superintendent of Schools of Cebu. 219 SCRA 256, to compel students to take part in the flag ceremony when it is against their religious beliefs will violate their religious freedom. Their expulsion also violates the duty of the State under Article XIV, Section 1 of the Constitution to protect and promote the right of all citizens to quality education and make such education accessible to all.

Under Section 3(3), Article XIV of the Constitution, at the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities to which the children or wards belong, without additional cost to the Government.

Article XIV of the Constitution imposes the following duties regarding education upon the State:
a. The State shall protect and promote the right of all citizens to quality education at all levels and shall take appropriate steps to make such education accessible to all (Section 1).
b. The State shall establish, maintain and support a complete, adequate, and integrated system of education relevant to the needs of the people and society [Section 2(1)].
c. The State shall establish and maintain a system of free public education in the elementary and high school levels [Section 2(2)].
d. The State shall establish and maintain a system of scholarship grants, student loan programs, subsidies, and other incentives which shall be available to deserving students in both public and private schools, especially to the underprivileged [Section 2(3)].
e. The State shall encourage non-formal, informal and indigenous learning systems, as well as self-learning, independent and out-of-school study program particularly those that respond to community needs, [Section 2(4)]
f. The State shall provide adult citizens, the disabled, and out-of-school youth with training in civics, vocational efficiency and other skills. [Section 2(5)]
g. The State shall take into account regional and sectoral needs and conditions and shall encourage local planning in the development of educational policies and programs. [Section 5(1)]
h. The State shall enhance the rights of teachers to professional advancement.
i. Non-teaching academic and non-academic personnel shall enjoy the protection of the State. [Section 5(4)]
j. The State shall assign the highest budgetary priority to education and ensure that teaching will attract and retain its rightful share of the best available talents through adequate remuneration and other means of job satisfaction and fulfillment. [Section 5(5)]

a. REPRISAL is a coercive measure short of war, directed by a state against another, in retaliation for acts of the latter and as means of obtaining reparation or satisfaction for such acts. Reprisal involves retaliatory acts which by themselves would be illegal. For example, for violation of a treaty by a state, the aggrieved state seizes on the high seas the ships of the offending state.

b. RETORSION is a legal but deliberately unfriendly act directed by a state against another in retaliation for an unfriendly though legal act to compel that state to alter its unfriendly conduct. An example of retorsion is banning exports to the offending state.

c. The DECLARATORY THEORY OF RECOGNITION is a theory according to which recognition of a state is merely an acknowledgment of the fact of its existence. In other words, the recognized state already exists and can exist even without such recognition. For example, when other countries recognized Bangladesh, Bangladesh already existed as a state even without such recognition.

d. RECOGNITION OF BELLIGERENCY is the formal acknowledgment by a third party of the existence of a state of war between the central government and a portion of that state.

Belligerency exists when a sizeable portion of the territory of a state is under the effective control of an insurgent community which is seeking to establish a separate government and the insurgents are in de facto control of a portion of the territory and population, have a political organization, are able to maintain such control, and conduct themselves according to the laws of war. For example, Great Britain recognized a state of belligerency in the United States during the Civil War.

e. CONTINENTAL SHELF of a coastal state comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental shelf does not extend up to that distance.

f. EXEQUATUR is an authorization from the receiving state admitting the head of a consular post to the exercise of his functions. For example, if the Philippines appoints a consul general for New York, he cannot start performing his functions unless the President of the United States issues an exequatur to him.

g. The principle of DOUBLE CRIMINALITY is the rule in extradition which states that for a request to be honored the crime for which extradition is requested must be a crime in both the requesting state and the state to which the fugitive has fled. For example, since murder is a crime both in the Philippines and in Canada, under the Treaty on Extradition between the Philippines and Canada, the Philippines can request Canada to extradite a Filipino who has fled to Canada.

h. PROTECTIVE PERSONALITY principle is the principle by which the state exercise jurisdiction over the acts of an alien even if committed outside its territory, if such acts are adverse to the interest of the national state.

i. INNOCENT PASSAGE means the right of continuous and expeditious navigation of a foreign ship through the territorial sea of a state for the purpose of traversing that sea without entering the internal waters or calling at a roadstead or port facility outside internal waters, or proceeding to or from internal waters or a call at such roadstead or port facility. The passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state.

j. JUS COGENS is a peremptory norm of general international law accepted and recognized by the international community as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. An example is the prohibition against the use of force.

Pacta sunt servanda means that every treaty in force is binding upon the States who are parties to it and States must perform their obligation in good faith (Deutsche Bank AG Manila Branch v. Commissioner of Internal Revenue, G.R. No. 188550, August 19, 2013, 704 SCRA 216).

Rebus sic stantibus means that a fundamental change of circumstances, which occurred with regard to those existing at the time of the conclusion of a treaty and which was not foreseen by the parties may not be invoked for withdrawing from a treaty unless their existence constituted an essential basis of the consent of the parties and their effect is to radically transform the extent of the obligations still to be performed (Article 62 of the Vienna Convention on the Law of Treaties).

Sovereignty signifies the right to exercise the functions of a State in regard to a portion of the globe to the exclusion of any other State. It is the principle of exclusive competence of a State in regard to its own territory (The Island of Las Palmas Case, 2 Report of International Arbitration Awards 839 [1928]).

State sovereignty is not absolute. It is subject to limitations imposed by membership in the family of nations and limitations imposed by treaty stipulations (Tanada v Angara, 272 SCRA 18, 1997)