CHAPTER 2. THE CONCEPT OF STATE  STATE v, COUNTRY v. GOVERNEMENT?

(Atty. Gabriel)
Article I-National Territory
 GOVERNMENT is merely an
The national territory comprises the Philippine instrumentality of the State through which
archipelago, with all the islands and waters the will of the State is implemented and
embraced therein, and all other territories over realized. (NACHURA)
which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial Government is merely an external
and aerial domains, including its territorial sea, manifestation of the State through which
the seabed, the subsoil, the insular shelves, and the will of the State is exercised (ALBANO)
other submarine areas. The waters around,
between, and connecting the islands of the  STATE is independent of outside control,
archipelago, regardless of their breadth and while COUNTRY does not require
dimensions, form part of the internal waters of independence. (Gabby recit notes)
the Philippines.
ELEMENTS OF A STATE: (Atty. Gabriel)
Article II- Declaration of Principles and
State Policies 1. PEOPLE (NACHURA)
a) Different meaning as used in the
Section 1. The Philippines is a democratic and Constitution:
republican State. Sovereignty resides in the i. Inhabitants (Sec. 2, Art
people and all government authority emanates III; Sec. 1, Art. XIII);
from them. ii. Citizens (Preamble;
WHAT IS A STATE? (Atty. Gabriel) Secs. 1 & 4, Art. II; Sec.
7, Art III);
A community of persons, more or less iii. Electors (Sec. 4, Art.
numerous, permanently occupying a definite VII);
portion of territory , independent of external
control, and possessing a government to which
a great body of inhabitants render habitual b) As requisite for Statehood:
obedience. Collector of Internal Revenue v. Adequate number for self-
Campos Rueda sufficiency and defense; of both
sexes for perpetuity.
 STATE v. NATION? (Atty. Gabriel)
Are they required to be citizens? Yes,
 STATE is a legal or juristic concept, while
at least some portion (e.g. Vatican, only
NATION is an ethnic or racial concept.
450 are citizens) (Gabby recit notes)
(NACHURA)

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 2. TERRITORY (NACHURA)
a. The National Territory: Sec.1,
Art. I of the Constitution
b. Components: Terrestrial,
fluvial, maritime, and aerial
domains.
Is it required that the territory be
composed of water, air, and land?
YES, for sustenance. (Gabby recit
notes)
What is the national territory of the
PH? Sec. 1, Art. I. (Gabby recit notes)
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.
2 groups of territory of the PH as stated in
Art I?
1. Philippine archipelago
2. All other territories over which the
PH exercises sovereignty and
jurisdiction. (Gabby recit notes)
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What are deemed included in the national
territory? (by virtue of treaties) (Gabby
recit notes)
1. Treaty of Paris
2. US-Spain Treaty (1900) – Cagayan,
Sulu, Sibuto
3. US-Great Britain – Turtle, Mangsee
Islands
4. 1935 Constitution – Batanes
5. 1973 Constitution – “by historic
right or legal title” (Sabah, Borneo)
4 modes of acquiring territory?
1. Occupation
2. Accretion
3. Cession
4. Prescription (Magallona v.
Ermita)
*not by executing multilateral treaties on the
regulations of the sea-use rights or enacting
statutes to comply with the treaty’s 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
(Magallona v. Ermita)
Archipelagic Doctrine:“…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.” (2nd sentence, Sec. 1, Art.
I)
 This articulates the archipelagic
doctrine of national territory, 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.
(Nachura)
WHAT IS THE ARCHIPELAGIC DOCTRINE
AND HOW IS IT ADOPTED IN THE
CONSTITUTION?
It is a principle where appropriate points are
set along the coast of the archipelago including
the outermost islands and then connect those
points with straight baselines. All waters
within the baselines are considered internal
waters of the archipelago state. It is adopted in
the constitution when it says that, “the water
around, between and connecting the islands of
the archipelago, regardless of their breadth
and dimensions, form part of the internal
waters of the Philippines.” (ALBANO)
IS THE ARCHIPELAGIC PRINCIPLE A PART
OF INTERNATIONAL LAW?
No. The archipelagic principle is not part of
international law. Until the International
Convention on the Law of the Sea comes into
force and effect, it is not a part of international
law. It is merely a part of municipal law and
therefore, it depends upon our own capacity to
enforce our own claim.
In 1961, RA 3046 was enacted demarcating
the maritime baselines of the Philippines
as an archipelagic State. It followed the
framing of the Convention of the Territorial
Sea and the Contiguous Zone in 1958
(UNCLOS I), codifying the sovereign right of
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the States parties over their “territorial
sea,” the breadth of which remained
undetermined. In 2009, RA 9522 was
enacted to make RA 3046 comply with the
terms of the UNCLOS III which prescribed
the water-land ratio, length and contour of
baselines of archipelagic States and set the
guidelines for the filing of application for
the extended continental shelf. It
shortened one baseline, optimized the
location of some base points around the
Philippine archipelago and classified
adjacent territories like Kalayaan Islands
Group (KIG) and the Scarborough Schoal as
regimes of islands, which generate their
own maritime zones.
Petitioner questioned the validity of RA
9522 on two (2) grounds: (1) it reduces
Philippine maritime territory, and logically,
the reach of the 1987 Constitution,
embodying the terms of the Treaty of Paris
and ancillary treaties, and (2) it opens the
country’s waters landward of the baselines
to maritime passage by all vessels and
aircrafts, undermining Philippine
sovereignty and national security,
contravening the country’s nuclear-free
policy and damaging marine resources.
They further contended that the treatment
of KIG as “regime of islands” resulted in the
loss of large maritime area, which
prejudices the livelihood of subsistence
fishermen.
Respondents contended that RA 9522
preserves Philippine territory over KIG
and the Scarborough Shoal. It does not
undermine the country’s security,
environment and economic interests nor
relinquish the Philippines’ claim over
Sabah.
Petitioners contended that RA 9522
“dismembers a large portion of the
national territory” because it discards the
pre-UNCLOS III demarcation of Philippine
territory under the Treaty of Paris and
related treaties, successively encoded in
the definition of national territory in the
Constitution. They contended that this
constitutional definition trumps any treaty
or statutory provision denying the
Philippines sovereign control over waters,
beyond the territorial sea recognized at the
time of the Treaty of Paris,that Spain
supposedly ceded to the United States.
They argued that from the Treaty of Paris’
technical description, Philippine
sovereignty over territorial waters extends
hundreds of nautical miles around the
Philippine archipelago, embracing the
rectangular area delineated in the Treaty
of Paris. Is the contention correct? Why?
No. 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
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 world’s oceans and
submarine areas, recognizing coastal and
archipelagic State’s graduated authority over a
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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 base points 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
48 of UNCLOS III on archipelagic States
provides that “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.” (Magallona, et
al v. Ermita)-ALBANO
What is the nature of baselines laws?
Explain.
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. It
gives notice to he 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).
(Magallona v. Ermita)
STRAIGHT BASELINE METHOD: Imaginary
straight lines are drawn enclosing the
outermost points of outermost islands of the
archipelago, enclosing an area the ratio of
which should not be more than 9:1 (water to
land); provided that the drawing of baselines
shall not depart, to any appreciable extent,
from the general configuration of the
archipelago. The waters within the baselines
shall be considered internal waters; while the
breadth of the territorial sea shall then be
measured from the baselines.
UN CONVENTION OF THE LAW OF THE SEA:
a. 12 nm – territorial sea (exercise
sovereignty)
b. 24 nm – contiguous zone (customs,
fiscal, immigration, sanitation)
c. 200 nm – exclusive economic zone
(right to exploit living and non-
living resources)
Although the contiguous zone and
most of the exclusive economic
zone may not, technically, be part
of the territory of the State,
nonetheless, the coastal State
enjoys preferential rights over the
marine resources found within
these zones. (Nachura)
Two problems if PH did not comply with
UNCLOS III?
- open invitation to exploit
resources
- weaken our country’s claim in
maritime disputes
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Petitioners contended that RA 9522’s use
of UNCLOS III’s regime of islands
framework to draw the baselines, and to
measure the breadth of the applicable
maritime zones of the KIG, “weakened our
territorial claim” over that area. They
added that the KIG’s (and Scarborough
Shoal’s) exclusion from the Philippine
archipelagic baselines results in the loss of
“about 15,000 square nautical miles of
territorial waters,” prejudicing the
livelihood of subsistence fishermen. Is the
contention correct? Why?
The contention that 15,000 square nautical
miles of territorial waters under RA 9522 was
lost is not correct. RA 9522, by optimizing the
location of base points, increased the
Philippines’ total maritime space (covering its
internal waters, territorial sea and exclusive
economic zone) by 145, 216 square nautical
miles.
The reach of the exclusive economic zone
drawn under RA 9522 even extends way
beyond the waters covered by the rectangular
demarcation under the Treaty of Paris. Of
course, where there are overlapping exclusive
economic zones of opposite or adjacent States,
there will have to be a delineation of maritime
boundaries in accordance with UNCLOS III.
(Magallona v. Ermita)
It was argued that with RA 9522, the KIG
now lies outside the Philippine territory
because it does not enclose the KIG, hence
the Philippines lost its claim of sovereignty
and jurisdiction over KIG and Scarborough
Shoal. Is the contention? Why?
No. 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
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 “the 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.
Although the Philippines has consistently
claimed sovereignty over the KIG and the
Scarborough Shoal for several decades, these
outlying areas are located at an appreciable
distance from the nearest shoreline of the
Philippine archipelago, such that any straight
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baseline loped around them from the nearest
base point will inevitably “depart to an
appreciable extent from the general
configuration of the archipelago.”
Similarly, the length of one baseline that RA
3046 drew exceeded UNCLOS III’s limits. The
need to shorten this baseline, and in addition,
to optimize the location of base points using
current maps, became imperative.
(Magallona v. Ermita)
Did the Philippines surrender its claim
over KIG and Scarborough Shoal when it
classified them as regime of islands? Why?
No. The decision to classify the KIG and the
Scarborough Shoal as “Regime[s] of Islands’
under the Republic of the Philippines
consistent with Article 121’ of UNCLOS III
manifests the Philippine State’s 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. (Magallona v.
Ermita)
It was contended that the RA 9522 is
invalid for its failure to textualize the
Philippines’ claim over Sabah in North
Borneo. Is the contention correct? Why?
No. Section 2 of RA 5446, which did not repeal,
keeps open the door for drawing the baselines
of Sabah since the law provides that the
definition of the baselines of the territorial sea
of the Philippine Archipelago as provided in
this Act is without prejudice to the 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. (Sec. 2, Magallona v. Ermita)
It was contended that RA 9522 is not valid
because it unconstitutionally “converted
internal waters into archipelagic waters,
hence subjecting these waters to the right
of innocent and sea lanes passage under
UNCLOS III, including overflight. It would
expose Philippine internal waters to
nuclear and maritime pollution hazards, in
violation of the Constitution. Is the
contention correct? Why?
No. Whether referred to as Philippine “internal
waters” under Article I of the Constitution or
as “archipelagic waters” under UNCLOS III
(Article 49 [1]), the Philippine exercises
sovereignty over the body of water lying
landward of the baselines, including the air
space over it and the submarine areas
underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters,
of the air space over archipelagic waters and
of their bed and subsoil.-
1. The sovereignty of an archipelagic
State extends to the waters
enclosed by the archipelagic
baselines drawn in accordance
with Article 47, described as
archipelagic waters, regardless of
their depth or distance from the
coast.
2. This sovereignty extends to the air
space over the archipelagic waters,
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as well as to their bed and subsoil,
and the resources contained
therein.
3. X x x.
4. The regime of archipelagic sea
lanes passage established in this
Part shall not in other respects
affect the status of the archipelagic
waters, including the sea lanes, or
the exercise by the archipelagic
State of its sovereignty over such
waters and their air space, bed and
subsoil, and the resources
contained therein. (Emphasis
supplied)
The fact of sovereignty, however, does not
preclude the operation of municipal and
international law norms subjecting the
territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the
interest of maintaining unimpeded,
expeditious international navigation,
consistent with the international law principle
of freedom of navigation. Thus, domestically,
the political branches of the Philippine
government, in the competent discharge of
their constitutional powers, may pass
legislation designating routes within the
archipelagic waters to regulate innocent and
sea lanes passage.
In the absence of municipal legislation,
international law norms, now codified in
UNCLOS III, operate to grant innocent passage
rights over the territorial sea or archipelagic
waters, subject to the treaty’s limitations and
conditions for their exercise. Significantly, the
right of innocent passage is a customary
international law, thus automatically
incorporated in the corpus of Philippine law.
No modern state can validly invoke its
sovereignty to absolutely forbid innocent
passage that is exercised in accordance with
customary international law without risking
retaliatory measures from the international
community. (Magallona v. Ermita)
Examples of innocent passage (GAB
QUESTION)
Article 52. Right of innocent passage. —
1. Subject to article 53 and without prejudice
to article 50, ships of all States enjoy the
right of innocent passage through
archipelagic waters, in accordance with Part
II, section 3.
2. The archipelagic State may, without
discrimination in form or in fact among foreign
ships, suspend temporarily in specified areas
of its archipelagic waters the innocent passage
of foreign ships if such suspension is essential
for the protection of its security. Such
suspension shall take effect only after having
been duly published. (Emphasis supplied)
Article 53. Right of archipelagic sea lanes
passage. —
1. An archipelagic State may designate sea
lanes and air routes thereabove, suitable for
the continuous and expeditious passage of
foreign ships and aircraft through or over its
archipelagic waters and the adjacent
territorial sea.
2. All ships and aircraft enjoy the right of
archipelagic sea lanes passage in such sea
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lanes and air routes.
3. Archipelagic sea lanes passage means the
exercise in accordance with this Convention of
the rights of navigation and overflight in the
normal mode solely for the purpose of
continuous, expeditious and unobstructed
transit between one part of the high seas or an
exclusive economic zone and another part of
the high seas or an exclusive economic zone.
4. Such sea lanes and air routes shall traverse
the archipelagic waters and the adjacent
territorial sea and shall include all normal
passage routes used as routes for international
navigation or overflight through or over
archipelagic waters and, within such routes, so
far as ships are concerned, all normal
navigational channels, provided that
duplication of routes of similar convenience
between the same entry and exit points shall
not be necessary.
5. Such sea lanes and air routes shall be
defined by a series of continuous axis lines
from the entry points of passage routes to the
exit points. Ships and aircraft in archipelagic
sea lanes passage shall not deviate more than
25 nautical miles to either side of such axis
lines during passage, provided that such ships
and aircraft shall not navigate closer to the
coasts than 10 per cent of the distance
between the nearest points on islands
bordering the sea lane.
6. An archipelagic State which designates sea
lanes under this article may also prescribe
traffic separation schemes for the safe passage
of ships through narrow channels in such sea
lanes.
7. An archipelagic State may, when
circumstances require, after giving due
publicity thereto, substitute other sea lanes or
traffic separation schemes for any sea lanes or
traffic separation schemes previously
designated or prescribed by it.
8. Such sea lanes and traffic separation
schemes shall conform to generally accepted
international regulations.
9. In designating or substituting sea lanes or
prescribing or substituting traffic separation
schemes, an archipelagic State shall refer
proposals to the competent international
organization with a view to their adoption. The
organization may adopt only such sea lanes
and traffic separation schemes as may be
agreed with the archipelagic State, after which
the archipelagic State may designate,
prescribe or substitute them.
10. The archipelagic State shall clearly indicate
the axis of the sea lanes and the traffic
separation schemes designated or prescribed
by it on charts to which due publicity shall be
given.
11. Ships in archipelagic sea lanes passage
shall respect applicable sea lanes and traffic
separation schemes established in accordance
with this article.
12. If an archipelagic State does not designate
sea lanes or air routes, the right of archipelagic
sea lanes passage may be exercised through
the routes normally used for international
navigation. (Emphasis supplied)
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WHAT IS REGIME OF ISLANDS?
Article 121 provides: "Regime of islands. —
1. An island is a naturally formed area of land,
surrounded by water, which is above water at
high tide.
2. Except as provided for in paragraph 3, the
territorial sea, the contiguous zone, the
exclusive economic zone and the continental
shelf of an island are determined in
accordance with the provisions of this
Convention applicable to other land territory.
3. Rocks which cannot sustain human
habitation or economic life of their own shall
have no exclusive economic zone or
continental shelf."
Does it mean that if archipelagic States are
to innocent passage, it would place them in
lesser footing with continental coastal
States? Explain.
No. The fact that for archipelagic States, their
archipelagic waters are subject to both the
right of innocent passage and sea lanes
passage not place them in lesser footing vis-à-
vis continental coastal States which are
subject, in their territorial sea, to the right of
innocent passage and the right of transit
passage through international straits. The
imposition of these passage rights through
archipelagic waters under UNCLOS III was a
concession by archipelagic States, in exchange
for their right to claim all the waters landward
of their baselines, regardless of their depth or
distance from the coast, as archipelagic waters
subject to their territorial sovereignty. More
importantly, the recognition of archipelagic
States’ archipelago and the waters enclosed by
their baselines as one cohesive entity prevents
the treatment of their islands as separate
islands under UNCLOS III. Separate islands
generate their own maritime zones, placing
the waters between islands separated by more
than 24 nautical miles beyond the States’
territorial sovereignty, subjecting these
waters to the rights of other States under
UNCLOS III.
Petitioners’ invocation of non-executory
constitutional provisions in Article II
(Declaration of Principles and State Policies)
must also fail. Our present state of
jurisprudence considers the provisions in
Article II as mere legislative guides, which,
absent enabling legislation, “do not embody
judicially enforceable constitutional rights x x
x.” Article II provisions serve as guides in
formulating and interpreting implementing
legislation, as well as in interpreting executor
provisions of the Constitution. Although
Opposa v. Factora treated the right to a
healthful and balanced ecology under Section
16 of Article II as an exception, the present
petition lacks factual basis to substantiate the
claimed constitutional violation. The other
provisions petitioners cite, relating to the
protection of marine wealth (Article XII,
Section 2, paragraph 2) and subsistence
fishermen (Article XIII, Section 7), are not
violated by RA 9522. (Magallona v. Ermita)
Why is the demarcation of the baseline
important? Explain.
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.
UNCLOS III favors States with a long coastline
like the Philippines. UNCLOS III creates a sui
generis maritime space- the exclusive
economic zone- in waters previously part of
the high seas. UNCLOS III grants new rights to
coastal States to exclusively exploit the
resources found within this zone up to 200
nautical miles. UNCLOS III, however,
preserves the traditional freedom of
navigation of other States that attached to this
zone beyond the territorial sea before UNCLOS
III. (Magallona v. Ermita)
*dahil naka-abot kana dito its breaktime!!! 
May tatlong bibe akong nakita.
Mataba, mapayat ang mga bibe,
Ngunit ang may pakpak sa likod ay iisa,
Siya ang lider na nagsabi ng kwak kwak!

The demarcation of the baselines enables the Kwak kwak kwak! Kwak kwak kwak!
Philippines to delimit its exclusive economic
zone, reserving solely to the Philippines the
exploitation of all living and non-living

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Tayo na sa ilog ang sabi,
Kumendeng, kumendeng ang mga bibe.
Ngunit ang may pakpak sa likod ay iisa,
Siya ang lider na nagsabi ng kwak kwak!
Kwak kwak kwak! Kwak kwak kwak!
Siya ang lider na nagsabi ng kwak kwak!
May tatlong bibe akong nakita.
Mataba, mapayat mga bibe,
Ngunit ang may pakpak sa likod ay iisa,
Siya ang lider na nagsabi ng kwak kwak!
Kwak kwak kwak! Kwak kwak kwak!
For sure kinanta mo to!!! aminin
3. GOVERNMENT (Nachura)
- The agency or instrumentality,
through which the will of the State
is formulated, expressed and
realized.
- Defined as that institution or
aggregate of institutions by which
an independent society makes and
carries out those rules of action
which are necessary to enable men
to live in a social State, or which
are imposed upon the people
forming that society by those who
possess the power or authority of
prescribing them. Government is
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the aggregate of authorities which
rule a society. (US. V. Dorr) Albano
Government as defined under Sec.2 of
Revised Administrative Code: ‘The
Government of the Philippine Islands’ is a term
which refers to the corporate governmental
entity through which the functions of
government are exercised throughout the
Philippine Islands, including, save as the
contrary appears from the context, the various
arms through which political authority is
made effective in said Islands, whether
pertaining to the central Government or to the
provincial or municipal branches or other
form of local government.”
Traditional functions of the government:
a. Constituent – mandatory for the
government to perform because they
constitute the very bonds of society, such
as the maintenance of peace and order,
regulation of property and property rights,
etc.
b. Ministrant – those intended to promote
the welfare, progress and prosperity of the
people, and which are merely optional for
government to perform. Merely optional.
Two instances where the gov’t is required
to exercise ministrant functions?
“The most important of the ministrant
functions are: public works, public education,
public charity, health and safety regulations,
and regulations of trade and industry. The
principles deter mining whether or not a
government shall exercise certain of these
optional functions are: (1) that a
government should do for the public
welfare those things which private capital
would not naturally undertake and (2) that
a government should do these things which
by its very nature it is better equipped to
administer for the public welfare than is
any private individual or group of
individuals.” (Bacani v. Nacoco)
Five (5) most important ministrant
functions:
1. Public works
2. Public education
3. Public charity
4. Health & safety regulations
5. Regulations of trade & industry. (Bacani
v.Nacoco)
Eight (8) constituent functions of the gov’t:
1. The keeping of order and providing for
the protection of persons and property
from violence and robbery.
2. The fixing of the legal relations
between man and wife and between
parents and children.
3. The regulation of the holding,
transmission, and interchange of
property, and the determination of its
liabilities for debt or for crime.
4. The determination of contract rights
between individuals.
5. The definition and punishment of
crime.
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6. The administration of justice in civil
cases.
7. The determination of the political
duties, privileges, and relations of
citizens.
8. Dealings of the state with foreign
powers: the preservation of the state
from external danger or encroachment
and the advancement of its
international interests. (Bacani v.
Nacoco)
In PVTA V. CIR, the court noted that the
distinction between the two functions had
become blurred.
PVTA v. CIR: Doctrine
"The growing complexities of modern society,
however, have rendered this traditional
classification of the functions of government
quite unrealistic, not to say obsolete. The areas
which used to be left to private enterprise and
initiative and which the government was
called upon to enter optionally, and only
"because it was better equipped to administer
for the public welfare than is any private
individual or group of individuals", continue to
lose their well-defined boundaries and to be
absorbed within activities that the
government must undertake in its sovereign
capacity if it is to meet the increasing social
challenges of the times. Here as almost
everywhere else the tendency is undoubtedly
towards a greater socialization of economic
forces. Here of course this development was
envisioned, indeed adopted as a national
policy, by the Constitution itself in its
declaration of principle concerning the
promotion of social justice."

“This laid to rest the doctrine
in Bacani v. National Coconut
Corporation, based on the Wilsonian
classification of the tasks incumbent
on government into constituent and
ministrant in accordance with
the laissez faire principle.”
Are there any distinctions between the
constituent and ministrant functions of
government? Explain.
None. Under the expanded provisions of the
Constitution on social justice, what used to be
optional functions of government became
mandated or imposed, hence, they are now
mandatory. In ACCFA v. Federation of Labor
Unions and PTVA v. CIR, the Supreme Court,
explaining the irrelevance of the distinctions
between the two (2) functions said that the
growing complexities of modern society have
rendered the traditional classification of the
functions of government quite unrealistic, not
to say obsolete. The areas which used to be left
to private enterprise and initiative and which
the government was called upon to enter
optionally and only because it was better
equipped to administer for the public welfare
than any private individual or group of
individuals continue to lose their well-defined
boundaries and to be undertaken in its
sovereign capacity if it is to meet the
increasing challenges of the times. Here, as
almost everywhere else, the tendency is
undoubtedly towards a greater socialization of
economic forces. (Albano)
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Doctrine of Parens Patriae: Literally, parent
of the people. As such, the government may act
as guardian of the rights of the people who
may be disadvantaged or suffering from some
disability or misfortune. (GRP v. Monte de
Piedad)
Pilapil had an acknowledged natural child
with Cabañas. He took out a policy on his
life and made his acknowledged natural
daughter his sole beneficiary, but
stipulated that in the event of his death, the
proceeds of his life insurance policy shall
be administered by his brother. Pilapil died
and the proceeds of the insurance policy
were now in possession and being
administered by his brother in accordance
with the policy stipulations. Cabańas, the
mother of the acknowledged natural child,
filed a complaint in order to recover the
administration of the property and
invoked Art. 320 (now Art. 225, Family
Code) of the New Civil Code which provides
that “the Father, or in his absence, the
mother, is the legal administrator of the
property pertaining to the child under
parental authority.” There seems to be a
clash between the provisions of Art. 320 of
the Civil Code and a stipulation in the life
insurance policy. Which right will now
prevail?
It should be article 320 of the New Civil Code
(now Art. 225 of the Family Code) not only by
virtue of its explicit provision but because it is
legal provision that will give meaning and
substance to Art. II, Sec. 4 (now Sec. 12) of the
Constitution which provides that “The State
shall strengthen the family as a basic social
institution.” The child is not a creature of the
State. In emphasizing the doctrine of parens
patriae, the Supreme Court said:
“The appealed decision is supported
by another cogent consideration. It is
buttressed by its adherence to the
concept that the judiciary, as an agency
of the State acting as parens patriae, is
called upon whenever a pending suit
or litigation affects one who is a minor
to accord priority to his best interest.
It may happen, as it did occur here, that
family relations may press their
respective claims. It would be more in
consonance not only with the natural
order of things but the tradition of the
country for a parent to be preferred. It
could have been different if the conflict
were between father and mother. Such
is not the case at all. It is a mother
asserting priority. Certainly the
judiciary as the instrumentality of the
State in its role of parens patriae
cannot remain insensible to the
validity of her plea. In a recent case,
there is this quotation from an opinion
of the United states Supreme Court:
“This prerogative of parens patriae is
inherent in the supreme power of
every State, whether that power is
lodged in a royal person in the
Legislature, and has no affinity to those
arbitrary powers which are sometimes
exerted by irresponsible monarchs to
the great detriment of the people and
the destruction of their liberties.” If, as
the Constitution so wisely dictates, it is
the family as a unit that has to be
strengthened, it does not admit of
doubt that even if a stronger case were
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presented for the uncle, still deference
to a constitutional mandate would
have led the lower court to decide as it
did.” (Cabañas v. Pilapil)
Parens patriae is exercised by the State for
the purpose of seeing to it that the welfare
of the citizens are taken cared of. Does this
apply in criminal cases? Give an example
Yes, it is also applicable in criminal cases, like
in People v. Casipit, where it was said that
where the victims of rape are of tender years,
there is a marked receptivity on the part of the
courts to lend credence to their version of
what transpired, a matter not to be wondered
at, since the State, as parens patriae, is under
obligation to minimize the risk of harm to
those who, because of their minority, are not
yet able to fully protect themselves. (Albano)
CLASSIFICATION OF GOVERNMENT:
As to the existence or absence of title and/or
control/legitimacy:
a. De jure – has a rightful title but no
power or control, either because
the same has been withdrawn
from it or because it has not yet
actually entered into the exercise
thereof.
-is one established by
authority of legitimate
sovereign
b. De facto – actually exercises
power of control but without legal
title.
 -merely, is one established in
defiance of the legitimate
sovereign.
b.1. De facto proper –
government that gets
possession and control of,
or usurps, by force or by
the voice of the majority,
the rightful legal
government and maintains
itself against the will of the
latter.
b.2 De facto government
of paramount force –
established and
maintained by military
forces who invade and
occupy a territory of the
enemy in the course of war.
b.3. Independent
government – established
by the inhabitants of the
country who rise in
insurrection against the
parent state, such as the
government of the
Southern Confederacy in
revolt against the Union
during the war of secession.
Co Kim Cham v. Valdez
Tan Keh
As to concentration of powers in a
governmental branch:
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a. Presidential – there is separation
of executive and legislative powers.
b. Parliamentary – there is fusion of
executive and legislative powers in
parliament, although the actual
exercise of executive powers is
vested in a Prime Minister who is
chosen by, and accountable to,
Parliament.
As to centralization of control:
a. Unitary – one in which the control
of national and local affairs is
exercised by the central or
national government; single,
centralized government,
exercising powers over both the
internal and external affairs of the
State.
b. Federal – one in which the powers
of the government are divided
between two sets of organs, one
for the national affairs and the
other for local affairs, each organ
being supreme within its own
sphere; consists of autonomous
local government units merged
into a single state, with national
government exercising a limited
degree of power over the domestic
affairs but generally full discretion
of the external affairs of the State.
What are the distinctions between de jure
and de facto governments?
1. A de jure government is a government of
right; a government established according
to the Constitution of the State, and
lawfully entitled to recognition and
supremacy and the administration of the
State but is actually ousted from power or
control, it is the true and lawful
government
2. A de facto government, on the other hand,
is that government which unlawfully gets
the possession and control of the rightful
legal government, and maintains itself
there by force and arms against the will of
the rightful legal government, and claims
to exercise the powers thereof. It is a
government of fact. (Co Kim Chan v.
Valdez Tan Keh) Albano
What is an “Act of State”?
It is an exercise of sovereign power which
cannot be challenged, controlled or interfered
with by municipal courts. It refers to the
political acts of a State which are exercised as
exclusive prerogatives by the political
departments of the government and not
subject to judicial review and for the
consequences of which, even when affecting
private interests, they will not hold legally
responsible those who command or perform
them. This is in its broadest sense. In its
limited sense, it refers to the acts taken by the
State concerning as affecting aliens, like the
inherent right of every sovereign State to
exclude resident aliens, like the inherent right
of every sovereign State to exclude resident
aliens from its territory when their continued
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presence is no longer desirable from the
standpoint of its domestic interest and
tranquility. (Political Law, Neptali Gonzales)
On 7 April 1986, in connection with
criminal proceedings initiated in the
Philippines to locate, sequester and seek
restitution of alleged ill-gotten wealth
amassed by the Marcoses and other
accused from the Philippine Government,
and the Office of the Solicitor General (OSG)
wrote the Federal Office for Police Matters
in Berne, Switzerland, requesting
assistance for the latter office to: (a)
ascertain and provide the OSG with
information as to where and which cantons
the ill-gotten fortune of the Marcoses and
other accused are located, the names of the
depositors and the banks and the amounts
involved; and (b) take necessary
precautionary measures, such as
sequestration, to freeze the assets in order
to preserve their existing value and
prevent any further transfer thereof
(herein referred as the IMAC request).
On 29 May 1986, the Office of the District
attorney in Zurich, pursuant to the OSG’s
request, issued an Order directing the
Swiss Banks in Zurich to freeze the
accounts of the accused in PCGG I.S. No.1
and in the “List of Companies and
Foundation.” In compliance with Order,
Bankers Trust A.G (BTAG) of Zurich froze
the account of Officeo Holdings, N.V.
(Officeco).
Officeco appealed the Order of the District
attorney to the Attorney general of the
Canton of Zurich. The Attorney General
affirmed the Order of the District Attorney.
Officeco further appealed to the Swiss
Federal Court which likewise dismissed the
appeal on 31 May 1989.
Officeco made representations with the
OSG and the PCGG for them to officially
advise the Swiss Federal Office for Police
Matters to unfreeze Officeco assets. The
PCGG required Officeco to present
countervailing evidence to support its
request, but instead of complying with the
PCGG requirement for it to submit
countervailing evidence, Officeco filed the
complaint with the SB praying for the PCGG
and the OSG to officially advise the Swiss
government to exclude from the freeze or
sequestration order the account of Officeco
with BTAG and to unconditionally release
the said account to Officeco.
A motion to dismiss was filed but it was
denied hence, a petition was brought to the
SC claiming that the civil action of the Swiss
government since the Sandiganbayan
would inevitably examine and review the
freeze orders of Swiss officials in resolving
the case. This would be in violation of the
“Act of State” doctrine which states that
courts of one country will not sit in the
deference to the independence of
sovereignty of every sovereign state.
Furthermore, if the Sandiganbayan
allowed the complaint to prosper, this
would place the Philippine government in
an uncompromising position as it would be
constrained to take a position contrary to
that contained in the IMAC request. Is the
contention correct? Explain.
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No. The parameters of the use of the Act of
state doctrine were clarified in Banco
Nacional de Cuba v. Sabbatino. There, the U.S
Supreme Court held that international law
does not require the application of this
doctrine nor does it forbid the application of
the rule even if it is claimed that the act of state
in question violated international law.
Moreover, due to the doctrine’s peculiar
nation-to-nation character, in practice the
usual method for an individual to seek relief is
to exhaust local remedies and then repair to
the executive authorities of his own state to
persuade them to champion his claim in
diplomacy or before an international tribunal.
Even assuming that international law requires
the application of the Act of State doctrine, it
bears stressing that the Sandiganbayan will
not examine and review the freeze orders of
the concerned Swiss officials in Civil Case No.
0164.The Sandiganbayan will not require the
Swiss officials to submit to its adjudication nor
will it settle a dispute involving said officials.
In fact, as prayed for in the complaint, the
Sandiganbayan will only review and examine
their propriety of maintaining PCGG’s position
with respect to Officeco’s accounts with BTAG
for the purpose of further determining the
propriety of issuing a writ against the PCGG
and the OSG. Everything considered, the Act of
State doctrine finds no application in this case
and petitioners’ resort to it is utterly mislaid.
(PCGG vs. SB)-Albano
The Republic of the Philippines deported
Harvey, et al., due to their acts of utilizing
Filipino children for prostitution. Is the act
of the State valid? Why?
Yes. Every sovereign power has the inherent
power to exclude aliens from its territory upon
such grounds as it may deem proper for its
self-preservation or public interest. The power
to deport aliens in an act of the State, an act
done by or under the authority of the
sovereign power. It is police measure against
undesirable aliens whose continued presence
in the country is found to injurious to the
public good and the domestic tranquility of the.
Particularly so where the State has expressly
committed itself to defend the right of children
to assistance and special protection from all
forms of neglect, abuse, cruelty, exploitation,
and other conditions prejudicial to their
development. The Commissioner of
Immigration and Deportation, in instituting
deportation against pedophiles, acted in the
interests of the State. (Harvey v.
Commissioner Defensor-Santiago)- Albano
4. SOVEREIGNTY
- The supreme and uncontrollable
power inherent in a State by which
that State I governed. (Laurel v.
Misa)
- Juristically speaking, sovereignty
means the supreme,
uncontrollable power, the jures
sumi imperri, the absolute right to
govern. (Story on the Constitution,
Gonzales, Political Law). It is the
supreme will of the State, the
power to make laws and enforce
them by all the means of coercion
it cares to employ. (Albano)
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KINDS:
a. Legal – which is the power to issue final
commands
- is the possession of unlimited
power to make laws. (Sinco, cited
in Gonzales, Phil. Politica Law,
ALBANO)
- it is the authority by which a law
has the power to issue final
commands. (Gilebrist, Principles of
Political Science, ALBANO)
- it is conferred upon Congress
(ALBANO)
b. Political – which is the sum total of all the
influences which lie behind the law
- is the sum total of all the influences
in State which lie behind the law.
- It is roughly defined as the power
of the people.
- It is the sovereignty of the
electorate, or in its general sense,
the sovereignty of the whole body
politic. (Gonzales, Phil. Political
Law, ALBANO)
- It is conferred upon the people.
c. Internal – the supreme power over
everything within its territory
d. External – also known as independence,
which is freedom from external control.
DUAL ASPECTS OF SOVEREIGNTY
a. Internal- which means the
supremacy of a person or body of
persons in the State over the
individuals or association of
individuals within the area of its
jurisdiction
 b. External- which means the
absolute independence of one
State as a whole with reference to
the other States. External
sovereignty is nothing more than
the freedom of the Sate from
subjection to or control by a
foreign State, that is the supremacy
of the State as against all foreign
wills (Gonzales, Phil. Political Law)
CHARACTERISTIC:
a. Permanent
b. Exclusive
c. Comprehensive
d. Absolute
e. Indivisible
f. Inalienable
g. Imprescriptible (Laurel v Misa)
PRINCIPLES OF SOVEREIGNTY:
Doctrine of Auto-Limitation
It is the doctrine wherein the Philippines
adheres to the exercise of its sovereignty. It
means that any state may, by its consent,
express or implied, submit to a restriction of
its sovereign rights. (Reagan v. CIR)
IMPERIUM – is the state’s authority to govern
as embraced in the concept of sovereignty.
DOMINIUM – is the capacity of the state to
own or acquire property.
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Effect of Belligerent Occupation
There is no change in sovereignty. However,
political laws, except those of treason, are
merely suspended; municipal laws remain in
force unless changed by the belligerent
occupant.
What may be suspended is the exercise of the
rights of sovereignty, with the control and
government of the territory occupied by the
enemy passes temporarily to the occupant.
(Laurel v. Misa)
Municipal laws remain in force because they
regulate the relations between private
individuals in order to preserve public order.
(Gabby notes)
Does the suspension of political laws apply to
ALL political laws? NO. Law of treason is not
suspended. Why? Citizens owe absolute and
permanent allegiance to their country. (Gabby
notes)
Suspension of political laws does not apply to
enemies in war. (Gabby notes)
What happens to the governmental acts of the
belligerent govt? Acts which are contrary to
those of the original govt are void. (Gabby
notes)
Municipal laws which are inconsistent with
those of the occupied territory require a
proclamation to be declared inoperative.
((Gabby notes)
Principle of Jus Postiliminium
At the end of the occupation, when the
occupant is ousted from the territory, the
political laws which had been suspended
during the occupation shall automatically
become effective again. (Peralta v. Dir. Of
Prisons)
In the same vein, political laws of the
belligerent occupants are automatically
abrogated, unless they are expressly re-
enacted by the affirmative act of the new
sovereign. Municipal laws remain in force.
(Macariola v. Asuncion, Adm. Case No. 133-J)
Effect of revolutionary Government
A revolutionary government is bound by no
constitution. However, the revolutionary
government did not repudiate the Covenant or
the Declaration in the same way it repudiated
the Constitution. After installing itself as a de
jure government, the revolutionary
government could not escape responsibility
for the State’s good faith compliance with its
treaty obligations under international law.
During the interregnum when no constitution
or bill of rights existed, directives and orders
issued by the government officers were
validso long as these officers did not exceed
the authority granted them by the
revolutionary government. The directives and
orders should not have also violated the
Covenant or the Declaration. (Republic v.
Sandiganbayan, GR. 104768, July 21, 2003)
What is imperium? Dominium?
Imperium is the right of the State to pass or
enact its laws and employ force to secure
obedience thereto, maintain peace and order
within its territorial limits, defend the State
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against foreign invasion, and do any other act
of governance over its people and territory.
Dominium refers to the independent
proprietary right of possession, use,
conservation, disposition or sale, and control
by the state over its territorial lands.
How do you treat the claim of the
Philippines over Sabah? Is it imperium or
dominium?
It is both imperium and dominium. We seek
to own exclusively Sabah and in so owning, we
have to exercise our sovereignty to govern the
same. (ALBANO)
Is there any distinction between
possession of sovereignty and exercise of
sovereignty?
Yes. Sovereignty itself resides and remains
with the State as a juristic person, while the
exercise of sovereignty is delegated as a rule to
the government or its organs, which may be a
king or president, a parliament, or the
Congress, the electorate, or some other entity.
(Philippine Political Law, Gonzales)
May sovereignty be suspended? Why? (GAB
QuESTION)
No, because the existence of sovereignty
cannot be suspended without putting it out of
existence or divesting the possessor thereof at
least during the period of suspension, what
may be suspended is the exercise of the rights
of sovereignty when the control and
government of the territory by the enemy
passes temporarily to the occupant (Laurel v.
Misa). So that, during the Japanese occupation
in the Philippines, sovereignty itself was not
suspended for what was suspended was
merely the exercise of the rights of sovereignty.
X country passed laws but it lacks the force
to compel compliance. Does it possess
sovereignty? Why?
Yes, because lack of adequate force to compel
compliance with its laws is not essential to, or
incompatible with, the possession of
sovereignty. Legally, a sovereign may well
promulgate laws which he is actually unable to
enforce. (Professor Dickenson, cited in
Gonzales, Phil. Political Law, ALBANO)
Discuss the effects of change of sovereignty
on the laws of a ceded or annexed territory.
The political laws of the ceded State fall to the
ground as a matter of course upon the change
of sovereignty and are automatically replaced
by those of the new sovereign. However such
political laws of the prior sovereign as are not
in conflict with the Constitution of the new
sovereign may be continued in force by the
affirmative act of the Commander-in-chief
during the was and the Congress in time of
peace. But the non-political or municipal laws
are impliedly continued unless they are
inconsistent with the constitutional laws and
institutions of the new sovereign. Their
continuance is equivalent to their re-
enactment by the Legislature of the new
sovereign, thereby becoming entirely new
laws of the latter. (People v. Lo-Lo)
What are political laws? Give examples.
Political laws are those laws regulating the
relations sustained by the inhabitants to the
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sovereign. Examples are laws on citizenship,
right of assembly, freedom of speech, press, etc.
What are non-political laws or municipal
laws? Give examples.
Non-political laws are those which regulate
the social, economic, or commercial life of the
country of the inhabitants with each other.
Examples are civil, or commercial laws.
When is there military occupation over a
territory?
There is military occupation over a territory
when:
1. There is war between two (2) States;
2. The armed forces of one of the belligerents
take actual physical possession of the
territory of the other State;
3. The armed forces of the belligerent is able
to establish effective control and
administration.
If one of these is lacking, there can be no
military occupation in the legal sense.
Anastacio Laurel was charged with treason
for alleged collaboration with the enemy
during the Japanese occupation. He filed a
petition for habeas corpus on the theory
that the sovereignty of the legitimate
government of the Philippines and the
allegiance of all Filipinos were suspended.
Is the contention correct? Why?
In Laurel vs. Misa, the Supreme Court said
that the absolute and permanent allegiance of
the inhabitants of a territory occupied by the
enemy to their legitimate government or
sovereign is not abrogated or severed by the
enemy occupation, because the sovereignty of
the government or sovereign de jure is not
transferred thereby to the occupier, and if it is
not transferred to the occupant, it must
necessarily remain vested in the titular
government. What may be suspended is the
government of the territory occupied by the
enemy, which passes temporarily to the
occupant. Since sovereignty itself is not
suspended and subsists during the enemy
occupation, the allegiance of the inhabitants to
their legitimate government or sovereign
subsists and therefore, there is no such thing
as suspended allegiance.
The rule, however, that political laws of the
occupied territory are suspended or held in
abeyance during the military occupation is a
rule intended for the government of the civil
inhabitants of the occupied territory and does
not bind the enemies at war. (Ruffy v. Chief of
Staff). In this case, Ruffy, et al, were charged in
a court-martial proceeding for violation of
Articles 93 and 95 of the Articles of War. They
filed probation proceedings contending that
by the enemy occupation of the Philippines,
the National Defense Act and the Articles of
war as the rules creating and regulating the
Philippine Army, were suspended, being
political in nature. The Supreme Court said:
“The rule invoked by counsel, namely,
that laws of political nature or
affecting political relations are
considered suspended or held in
abeyance during the military
occupation, is intended for the
governance of the civil inhabitants of
the occupied territory. It is not
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intended for and does not bind the
enemies in arms. This is self-evident
from the very nature of things. The
paradox of a contrary ruling should
readily manifest itself. Under the
petitioner’s theory, the forces of
resistance operating in an occupied
territory would have to abide by the
outlawing of their own existence. They
would be stripped of the very life-
blood of an army, the right and the
ability to maintain order and discipline
within the organization ‘if you do not
try the men guilty of breach thereof.’”
Is there any requirement as to the number
of people that may comprise the State?
None. It is enough that the number is sufficient
to maintain its existence and defend itself.
Is there a requirement as to the area of the
territory of a State?
There is none. It is enough that it is large
enough to be able to sustain itself.
CIR v. CAMPOS RUEDA
G.R. No. L-13250 October 29, 1971
DOCTRINE:
FOREIGN COUNTRY IS DIFFERENT FROM A
STATE; A FOREIGN COUNTRY DOES NOT
NEED TO POSSESS THE ESSENTIAL
ELEMENTS OF A STATE. It does not admit of
doubt that if a foreign country is to be
identified with a state, it is required in line
with Pound's formulation that it be a
politically organized sovereign community
independent of outside control bound by
penalties of nationhood, legally supreme
within its territory, acting through a
government functioning under a regime of law.
It is thus a sovereign person with the people
composing it viewed as an organized
corporate society under a government with
the legal competence to exact obedience to its
commands. It has been referred to as a body-
politic organized by common consent for
mutual defense and mutual safety and to
promote the general welfare. Correctly has it
been described by Esmein as "the juridical
personification of the nation." This is to view it
in the light of its historical development. The
stress is on its being a nation, its people
occupying a definite territory, politically
organized, exercising by means of its
government its sovereign will over the
individuals within it and maintaining its
separate international personality. Laski could
speak of it then as a territorial society divided
into government and subjects, claiming within
its allotted area a supremacy over all other
institutions. McIver similarly would point to
the power entrusted to its government to
maintain within its territory the conditions of
a legal order and to enter into international
relations. With the latter requisite satisfied,
international law do not exact independence
as a condition of statehood. So Hyde did opine.
FACTS: In January 1955, Maria Cerdeira died
in Tangier, Morocco (an international zone
[foreign country] in North Africa). At the time
of her death, she was a Spanish citizen and was
a resident of Tangier. She however left some
personal properties (shares of stocks and
other intangibles) in the Philippines. The
designated administrator of her estate here is
Antonio Campos Rueda.
In the same year, the Collector of Internal
Revenue (CIR) assessed the estate for
deficiency tax amounting to about P161k.
Campos Rueda refused to pay the assessed tax
as he claimed that the estate is exempt from
the payment of said taxes pursuant to section
122 of the Tax Code which provides:
That no tax shall be collected under this Title in
respect of intangible personal property (a) if the
decedent at the time of his death was a resident
of a foreign country which at the time of his
death did not impose a transfer tax or death tax
of any character in respect of intangible person
property of the Philippines not residing in that
foreign country, or (b) if the laws of the foreign
country of which the decedent was a resident at
the time of his death allow a similar exemption
from transfer taxes or death taxes of every
character in respect of intangible personal
property owned by citizens of the Philippines
not residing in that foreign country.
Campos Rueda was able to prove that there is
reciprocity between Tangier and the
Philippines.
However, the CIR still denied any tax
exemption in favor of the estate as it averred
that Tangier is not a “state” as contemplated by
Section 22 of the Tax Code and that the
Philippines does not recognize Tangier as a
foreign country.
ISSUE: Whether or not Tangier is a state.

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HELD: Yes. For purposes of the Tax Code,
Tangier is a foreign country.
A foreign country to be identified as a state
must be a politically organized sovereign
community independent of outside control
bound by penalties of nationhood, legally
supreme within its territory, acting through a
government functioning under a regime of
law. The stress is on its being a nation, its
people occupying a definite territory,
politically organized, exercising by means of
its government its sovereign will over the
individuals within it and maintaining its
separate international personality.
Further, the Supreme Court noted that there is
already an existing jurisprudence (Collector
vs De Lara) which provides that even a tiny
principality that of Liechtenstein, hardly an
international personality in the sense, did
fall under the exempt category provided for in
Section 22 of the Tax Code. Thus, recognition
is not necessary. Hence, since it was proven
that Tangier provides such exemption to
personal properties of Filipinos found therein
so must the Philippines honor the exemption
as provided for by our tax law with respect to
the doctrine of reciprocity.
MAGALLONA v. ERMITA
G.R No. 187167 July 16, 2011
FACTS: In March 2009, Republic Act 9522, an
act defining the archipelagic baselines of the
Philippines was enacted – the law is also
known as the Baselines Law. This law was
meant to comply with the terms of the third
United Nations Convention on the Law of the
Sea (UNCLOS III), ratified by the Philippines in
February 1984.
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Professor Merlin Magallona et al questioned
the validity of RA 9522 as they contend, among
others, that the law decreased the national
territory of the Philippines hence the law is
unconstitutional. Some of their particular
arguments are as follows:
a. the law abandoned the demarcation
set by the Treaty of Paris and other
ancillary treaties – this also resulted to
the exclusion of our claim over Sabah;
b. the law, as well as UNCLOS itself,
describes the Philippine waters as
“archipelagic” waters which, in
international law, opens our
waters landward of the baselines to
maritime passage by all vessels
(innocent passage) and aircrafts
(overflight), undermining Philippine
sovereignty and national security,
contravening the country’s nuclear-
free policy, and damaging marine
resources, in violation of relevant
constitutional provisions;
c. the classification of the Kalayaan
Island Group (KIG), as well as the
Scarborough Shoal (bajo de masinloc),
as a “regime of islands” pursuant to
UNCLOS results in the loss of a large
maritime area but also prejudices the
livelihood of subsistence fishermen.
ISSUE: Whether or not the contentions of
Magallona et al are tenable.
HELD: No. The Supreme Court emphasized
that RA 9522, or UNCLOS, itself is not a means
to acquire, or lose, territory. The treaty and the
baseline law has nothing to do with the
acquisition, enlargement, or diminution of the
Philippine territory. What controls when it
comes to acquisition or loss of territory is the
international law principle on occupation,
accretion, cession and prescription and NOT
the execution of multilateral treaties on the
regulations of sea-use rights or enacting
statutes to comply with the treaty’s terms to
delimit maritime zones and continental
shelves.

The law did not decrease the demarcation of

our territory. In fact it increased it. Under the
old law amended by RA 9522 (RA 3046), we
adhered with the rectangular lines enclosing
the Philippines. The area that it covered was
440,994 square nautical miles (sq. na. mi.). But
under 9522, and with the inclusion of the
exclusive economic zone, the extent of our
maritime was increased to 586,210 sq. na.
mi. (See image below for comparison)

If any, the baselines law is a notice to

the international community of the scope of
the maritime space and submarine areas
within which States parties exercise treaty-
based rights.

Anent their particular contentions:

a. The law did not abandon the Sabah claim.

This is evident on the provision of Section 2 of
RA 9522:

Section 2. The definition of the baselines of the

territorial sea of the Philippine Archipelago as
provided in this Act is without prejudice to the
delineation of the baselines of the territorial

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sea around the territory of Sabah, situated
in North Borneo, over which the Republic of
the Philippines has acquired dominion and
sovereignty.
b. UNCLOS may term our waters as
“archipelagic waters” and that we may term it
as our “internal waters”, but the bottom line is
that our country exercises sovereignty over
these waters and UNCLOS itself recognizes
that. However, due to our observance of
international law, we allow the exercise of
others of their right of innocent passage. No
modern State can validly invoke its
sovereignty to absolutely forbid innocent
passage that is exercised in accordance with
customary international law without risking
retaliatory measures from the international
community.
c. The classification of the KIG (or the
Spratly’s), as well as the Scarborough Shoal, as
a regime of islands did not diminish our
maritime area. Under UNCLOS and under the
baselines law, since they are regimes of islands,
they generate their own maritime zones – in
short, they are not to be enclosed within the
baselines of the main archipelago (which is the
Philippine Island group). This is because if we
do that, then we will be enclosing a larger area
which would already depart from the
provisions of UNCLOS – that the demarcation
should follow the natural contour of the
archipelago.
Nevertheless, we still continue to lay claim
over the KIG and the Scarborough Shoal
through effective occupation.
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NOTES:
Under UNCLOS and the baselines law, we have
three levels of maritime zones where we
exercise treaty-based rights:
a. territorial waters – 12 nautical miles from
the baselines; where we exercise sovereignty
b. contiguous zone – 24 nautical miles from
the baselines; jurisdiction where we can
enforce customs, fiscal, immigration, and
sanitation laws (CFIS).
c. exclusive economic zone – 200 nautical
miles from the baselines; where we have the
right to exploit the living and non-living
resources in the exclusive economic zone
Note: a fourth zone may be added which is
the continental shelf – this is covered by Article
77 of the UNCLOS.
LEOPOLDO BACANI VS NATIONAL
COCONUT CORPORATION
G.R. No. L-9657. November 29, 1956
DOCTRINE:
FUNCTIONS OF THE GOVERNMENT;
CONSTITUENT AND MINISTRANT. To begin
with, we state that the term "Government"
may be defined as "that institution or
aggregate of institutions by which an
independent society makes and carries out
those rules of action which are necessary to
enable men to live in a social state, or which
are imposed upon the people forming that
society by those who possess the power or
authority of prescribing them" (U.S. vs. Dorr, 2
Phil., 332). This institution, when referring to
the national government, has reference to
what our Constitution has established
composed of three great departments, the
legislative, executive, and the judicial, through
which the powers and functions of
government are exercised. These functions are
twofold: constituent and ministrant. The
former are those which constitute the very
bonds of society and are compulsory in nature;
the latter are those that are undertaken only
by way of advancing the general interests of
society, and are merely optional. President
Wilson enumerates the constituent functions
as follows:
(1) The keeping of order and providing for the
protection of persons and property from
violence and robbery.
 the amount of P564 to Bacani and P150 to
(2) The fixing of the legal relations between
man and wife and between parents and
children.
(3) The regulation of the holding, transmission,
and interchange of property, and the
determination of its liabilities for debt or for
crime.
(4)The determination of contract rights
between individuals.
 section 16, Rule 130 of the Rules of Court.
(5)The definition and punishment of crime.
(6) The administration of justice in civil
cases.
 the stenographers’ fees under Rule 130 of the
(7) The determination of the political duties,
privileges, and relations of citizens.
(8) 
 Dealings of the state with foreign powers:
the preservation of the state from external
danger or encroachment and the advancement
of its international interests.'" (Malcolm, The
Government of the Philippine Islands, p. 19.)
FACTS: Leopoldo Bacani and Mateo Matoto
were court stenographers assigned in a court
in Manila. During the pendency of a particular
case in said court, counsel for one of the
parties, National Coconut Corporation or
NACOCO, requested said stenographers for
copies of the transcript of the stenographic
notes taken by them during the hearing.
Bacani et al complied with the request and
sent 714 pages and thereafter submitted to
said counsel their bills for the payment of their
fees. The National Coconut Corporation paid
Matoto for said transcripts at the rate of P1 per
page.
However, in January 1953, the Auditor General
required Bacani et al to reimburse said
amounts on the strength of a circular of the
Department of Justice. It was expressed that
NACOCO, being a government entity, was
exempt from the payment of the fees in
question. Bacani et al counter that NACOCO is
not a government entity within the purview of
NACOCO set up as a defense that the NACOCO
is a government entity within the purview of
section 2 of the Revised Administrative Code
of 1917 and, hence, it is exempt from paying
Rules of Court.
ISSUE: Whether or not NACOCO is a
government entity.

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HELD: No. Government owned and controlled
corporations (GOCCs) do not acquire the
status of being part of the government because
they do not come under the classification of
municipal or public corporation. Take for
instance the NACOCO. While it was organized
with the purpose of “adjusting the coconut
industry to a position independent of trade
preferences in the United States” and of
providing “Facilities for the better curing of
copra products and the proper utilization of
coconut by-products“, a function which our
government has chosen to exercise to promote
the coconut industry, it was, however, given a
corporate power separate and distinct from
our government, for it was made subject to the
provisions of our Corporation Law in so far as
its corporate existence and the powers that it
may exercise are concerned (sections 2 and 4,
Commonwealth Act No. 518 – the law creating
NACOCO). It may sue and be sued in the same
manner as any other private corporations, and
in this sense it is an entity different from our
government.
The Supreme Court also noted the constituent
functions of the government. Constituent
functions are those which constitute the very
bonds of society and are compulsory in
nature. According to U.S. President Woodrow
Wilson, they are as follows:
1. The keeping of order and providing for the
protection of persons and property from
violence and robbery.
2. The fixing of the legal relations between
man and wife and between parents and
children.
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3. The regulation of the holding, transmission,
and interchange of property, and the
determination of its liabilities for debt or for
crime.
4. The determination of contract rights
between individuals.
5. The definition and punishment of crime.
6. The administration of justice in civil cases.
7. The determination of the political duties,
privileges, and relations of citizens.
8. Dealings of the state with foreign powers:
the preservation of the state from external
danger or encroachment and the advancement
of its international interests.
On the other hand, ministrant functions are
those that are undertaken only by way of
advancing the general interests of society, and
are merely optional. The most important of the
ministrant functions are: public works, public
education, public charity, health and safety
regulations, and regulations of trade and
industry. The principles to consider whether
or not a government shall exercise certain of
these optional functions are: (1) that a
government should do for the public
welfare those things which private capital
would not naturally undertake and (2) that
a government should do these things which
by its very nature it is better equipped to
administer for the public welfare than is
any private individual or group of
individuals.

PVTA v. CIR
G.R. No. L-32052 July 25, 1975
CASE DOCTRINE:
THE PROMOTION OF GENERAL WELFARE IS
A GOVERNMENT FUNCTION, REPUDIATION
OF THE CONCEPT OF LAISSEZ FAIRE. The
growing complexities of modern society,
however, have rendered this traditional
classification of the functions of government
quite unrealistic, not to say obsolete. The areas
which used to be left to private enterprise and
initiative and which the government was
called upon to enter optionally, and only
'because it was better equipped to administer
for the public welfare than is any private
individual or group of individuals,' continue to
lose their well-defined boundaries and to be
absorbed within activities that the
government must undertake in its sovereign
capacity if it is to meet the increasing social
challenges of the times. Here as almost
everywhere else the tendency is undoubtedly
towards a greater socialization of economic
forces. Here of course this development was
envisioned, indeed adopted as a national
policy, by the Constitution itself in its
declaration of principle concerning the
promotion of social justice." Thus was laid to
rest the doctrine in Bacani v. National
Coconut Corporation, based on the Wilsonian
classification of the tasks incumbent on
government into constituent and ministrant in
accordance with the laissez faire principle.
That concept, then dominant in economics,
was carried into the governmental sphere, as
noted in a textbook on political science, the
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first edition of which was published in 1898,
its author being the then Professor, later
American President, Woodrow Wilson. He
took pains to emphasize that what was
categorized by him as constituent functions
had its basis in a recognition of what was
demanded by the "strictest [concept of] laissez
faire, [as they] are indeed the very bonds of
society." The other functions he would
minimize as ministrant or optional.
It is a matter of law that in the Philippines, the
laissez faire principle hardly commanded the
authoritative position which at one time it held
in the United States. As early as 1919, Justice
Malcolm in Rubi v. Provincial Board, could
affirm: "The doctrines of laissez faire and of
unrestricted freedom of the individual, as
axioms of economic and political theory, are of
the past. The modern period has shown a
widespread belief in the amplest possible
demonstration of government activity." The
1935 Constitution, as was indicated earlier,
continued that approach. As noted in Edu v.
Ericta: "What is more, to erase any doubts, the
Constitutional Convention saw to it that the
concept of laissez-faire was rejected. It
entrusted to our government the
responsibility of coping with social and
economic problems with the commensurate
power of control over economic affairs.
Thereby it could live up to its commitment to
promote the general welfare through state
action." Nor did the opinion in Edu stop there:
"To repeat, our Constitution which took effect
in 1935 erased whatever doubts there might
be on that score. Its philosophy is a
repudiation of laissez-faire. One of the leading
members of the Constitutional Convention,
Manuel A. Roxas, later the first President of the
Republic, made it clear when he disposed of
the objection of Delegate Jose Reyes of
Sorsogon, who noted the 'vast extensions in
the sphere of governmental functions' and the
'almost unlimited power to interfere in the
affairs of industry and agriculture as well as to
compete with existing business' as 'reflections
of the fascination exerted by [the then] current
tendencies' in other jurisdictions. He spoke
thus: 'My answer is that this constitution has a
definite and well defined philosophy, not only
political but social and economic. . . . If in this
Constitution the gentlemen will find
declarations of economic policy they are there
because they are necessary to safeguard the
interest and welfare of the Filipino people
because we believe that the days have come
when in self-defense, a nation may provide in
its constitution those safeguards, the
patrimony, the freedom to grow, the freedom
to develop national aspirations and national
interests, not to be hampered by the artificial
boundaries which a constitutional provision
automatically imposes."
It would be then to reject what was so
emphatically stressed in the Agricultural
Credit Administration decision about which
the observation was earlier made that it
reflected the philosophy of the 1935
Constitution and is even more in consonance
with the expanded role of government
accorded recognition in the present Charter if
the plea of petitioner that it discharges
governmental function were not heeded. That
path this Court is not prepared to take. That
would be to go backward, to retreat rather
than to advance. Nothing can thus be clearer
than that there is no constitutional obstacle to
a government pursuing lines of endeavor,
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formerly reserved for private enterprise. This
is one way, in the language of Laski, by which
through such activities, "the harsh contract
which [does] obtain between the levels of the
rich and the poor" may be minimized. It is a
response to a trend noted by Justice Laurel in
Calalang v. Williams for the humanization of
laws and the promotion of the interest of all
component elements of society so that man's
innate aspirations, in what was so felicitously
termed by the First Lady as "a compassionate
society" be attained.
FACTS: Private respondents filed a petition
seeking relief for their alleged overtime
services (in excess of their 8 regular hours a
day) and the failure to pay for said
compensation in accordance with
Commonwealth Act No. 444.
 Section 1: The legal working day for
any person employed by another shall
not be of more than eight (8) hours
daily.
Petitioner denies allegations for lack of a cause
of action and jurisdiction.
Respondents filed a Petition for Certiorari on
grounds that the corporation is exercising
governmental functions and is therefore
exempt from CA No. 444 which was denied and
dismissed by RTC and CA. Motion for
Reconsideration were also DENIED.
ISSUE: Whether or not PVTA discharges
governmental and not proprietary functions
and is exempt from CA No. 444.
HELD: It is an inherent state function which
makes government required to support its
people and promote their general welfare.
This case explains and portrays the expanded
role of government necessitated by the
increased responsibility to provide for the
general welfare.
The Court held that the distinction and
between constituent and ministrant functions,
which the Chief Justice points out, is
already irrelevant considering the needs of
the present time. He says that "The growing
complexities of modern society have rendered
this traditional classification of the functions
of government obsolete." The distinction
between constituent and ministrant functions
is now considered obsolete.
The Court affirms that the Petition as well as
the subsequent Motion for Reconsideration be
DENIED.
THE GOVERNMENT OF THE PHILIPPINE
ISLANDS, represented by the Treasurer of
the Philippine Islands
v.
EL MONTE DE PIEDAD Y CAJA DE AHORRAS
DE MANILA
G.R. No. L-9959 December 13, 1916
CASE DOCTRINE: DOCTRINE OF PARENS
PATRIAE - In Fontain vs. Ravenel (17 How.,
369, 384), Mr. Justice McLean, delivering the
opinion of the court in a charity case, said:
"When this country achieved its independence,
the prerogatives of the crown devolved upon
the people of the States. And this power still
remains with them except so far as they have
delegated a portion of it to the Federal
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Government. The sovereign will is made
known to us by legislative enactment. The
State as a sovereign, is the parens partiae."
Chancelor Kent says:
"In this country, the legislature or government
of the State, as parens partiae, has the right to
enforce all charities of a public nature, by
virtue of its general superintending authority
over the public interests, where no other
person is entrusted with it." (4 Kent Com., 508,
note.)
The Supreme Court of the United States in
Mormon Church vs. United States, supra, after
approving also the last quotations, said:
"This prerogative of parens partiae is inherent
in the supreme power of every State, whether
that power is lodged in a royal person or in the
legislature, and has no affinity to those
arbitrary powers which are sometimes
exerted by irresponsible monarch to the great
detriment of the people and the destruction of
their liberties. On the contrary, it is a most
beneficent function, and often necessary to be
exercised in the interest of humanity, and for
the prevention of injury to those who cannot
protect themselves."
The court in the same case, after quoting from
Sohier vs. Mass. General Hospital (3 Cush.,
483, 497), wherein the latter court held that it
is deemed indispensable that there should be
a power in the legislature to authorize the sale
of the estates of infants, idiots, insane persons,
and persons not known, or not in being, who
cannot act for themselves, said:
"These remarks in reference to infants, insane
persons and persons not known, or not in
being, apply to the beneficiaries of charities,
who are often incapable of vindicating their
rights, and justly look for protection to the
sovereign authority, acting as parens partiae.
They show that this beneficent function has
not ceased to exist under the change of
government from a monarchy to a republic;
but that it now resides in the legislative
department, ready to be called into exercise
whenever required for the purposes of justice
and right, and is as clearly capable of being
exercised in cases of charities as in any other
cases whatever."
In People vs. Cogswell (113 Cal. 129, 130), it
was urged that the plaintiff was not the real
party in interest; that the Attorney-General
had no power to institute the action; and that
there must be an allegation and proof of a
distinct right of the people as a whole, as
distinguished from the rights of individuals,
before an action could be brought by the
Attorney-General in the name of the people.
The court, in overruling these contentions,
held that it was not only the right but the duty
of the Attorney-General to prosecute the
action, which related to charities, and
approved the following quotation from
Attorney-General vs. Compton (1 Young & C. C.,
417): "Where property affected by a trust for
public purposes is in the hands of those who
hold it devoted to that trust, it is the privilege
of the public that the crown should be entitled
to intervene by its officers for the purpose of
asserting, on behalf on the public generally,
the public interest and the public right, which,
probably, no individual could be found
effectually to assert, even if the interest were
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such as to allow it." (2 Kent's Commentaries,
10th ed., 359; Lewin on Trusts, sec. 665; 1
Daniell's Chancery Practice, sec. 13; Perry on
Trusts, sec. 732.)
It is further urged, as above indicated, that "the
only persons who could claim to be damages
by this payment to the Monte, if it was
unlawful, are the donor or the cestuis que
trustent, and this Government is neither.
Consequently, the plaintiff is not the proper
party to bring the action." The earthquake
fund was the result or the accumulation of a
great number of small contributions. The
names of the contributors do not appear in the
record. Their whereabouts are unknown. They
parted with the title to their respective
contributions. The beneficiaries, consisting of
the original sufferers and their heirs, could
have been ascertained. They are quite
numerous also. And no doubt a large number
of the original sufferers have died, leaving
various heirs. It would be impracticable for
them to institute an action or actions either
individually or collectively to recover the
$80,000. The only course that can be
satisfactorily pursued is for the Government to
against assume control of the fund and devote
it to the object for which it was originally
destined.
The impracticability of pursuing a different
course, however, is not the true ground upon
which the right of the Government to maintain
the action rests. The true ground is that the
money being given to a charity became, in a
measure, public property, only applicable, it is
true, to the specific purposes to which it was
intended to be devoted, but within those limits
consecrated to the public use, and became part
of the public resources for promoting the
happiness and welfare of the Philippine
Government. (Mormon Church vs. U. S.,
supra.) To deny the Government's right to
maintain this action would be contrary to
sound public policy, as tending to discourage
the prompt exercise of similar acts of
humanity and Christian benevolences in like
instances in the future.
FACTS: In June 1863 a devastating
earthquake occurred in the Philippines. The
Spanish Government then provided
$400,000.00 as aid for the victims and it was
received by the Philippine Treasury. Out of the
said amount, $80,000.00 was left untouched; it
was then invested in the Monte de Piedad
Bank which in turn invested the amount in
jewelries. But when the Philippine
government later tried to withdraw the said
amount, the bank cannot provide for the
amount.
The government then filed a complaint. The
bank argued that the Philippine government is
not an affected party hence has no right to
institute a complaint. The bank argues that the
government was not the intended beneficiary
of the said amount.
ISSUE: Whether or not the Philippine
government is competent to file a complaint
against the respondent bank.
HELD: Yes. The Philippine government is
competent to institute action against Monte de
Piedad, this is in accordance with the doctrine
of parens patriae. The government being the
protector of the rights of the people has the
inherent supreme power to enforce such laws
that will promote the public interest. No other
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party has been entrusted with such right
hence as “parents” of the people the
government has the right to take back the
money intended for the people.
CO KIM CHAM v.
EUSEBIO VALDEZ TAN KEH and ARSENIO
P. DIZON, Judge of First Instance of Manila
G.R. No. L-5 September 17, 1945
CASE DOCTRINE:
DURING BELLIGERENT OCCUPATION,
JUDICIAL DECISIONS RENDERED BY THE
INVADER CONTINUE ITS FORCE AND
EFFECT EVEN AFTER THE CESSATION OF
INVASION. Suffice it to say that the provisions
of the Hague Conventions which imposes upon
a belligerent occupant the duty to continue the
courts as well as the municipal laws in force in
the country unless absolutely prevented, in
order to reestablish and insure "I'ordre et la vie
publice," that is, the public order and safety,
and the entire social and commercial life of the
country, were inserted, not for the benefit of
the invader, but for the protection and benefit
of the people or inhabitants of the occupied
territory and of those not in the military
service, in order that the ordinary pursuits and
business of society may not be unnecessarily
deranged.
This is the opinion of all writers on
international law up to date, among them
Wheaton (Vol. II, p. 236) and Oppenheim (Vol.
II, p. 338) in their recently revised Treatises on
International Law, edited in the year 1944, and
the interpretation of the Supreme Court of the
United States in many cases, specially in the
case of Dow vs. Johnson (106 U. S., 158), in
which that Court said: "As a necessary
consequence of such occupation and
domination, the political relations of its people
to their former government are, for the time
being, severed. But for their protection and
benefit, and the protection and benefit of
others not in the ordinary pursuits and
business of society may not be unnecessarily
deranged, the municipal laws, that is, such as
affect private rights of persons and property
and provide for the punishment of crime, are
generally allowed to continue in force, and to
be administered by the ordinary tribunals as
they were administered before the occupation.
They are considered as continuing, unless
suspended or superseded by the occupying
belligerent." (Dow vs. Johnson, 100 U. S., 158;
25 U. S. [Law, ed.], 632).
The fact that the belligerent occupant is a
treacherous aggressor, as Japan was, does not,
therefore, exempt him from complying with
said precepts of the Hague Conventions, nor
does it make null and void the judicial acts of
the courts continued by the occupant in the
territory occupied. To deny validity to such
judicial acts would benefit the invader or
aggressor, who is presumed to be intent upon
causing as much harm as possible to the
inhabitants or nationals of the enemy's
territory, and prejudice the latter; it would
cause more suffering to the conquered and
assist the conqueror or invader in realizing his
nefarious design; in fine, it would result in
penalizing the nationals of the occupied
territory, and rewarding the invader or
occupant for his acts of treachery and
aggression.
We held in our decision that the word
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"processes," as used in the proclamation of
General Douglas MacArthur of October 23,
1944, cannot be interpreted to mean judicial
processes; and because of the cogent reasons
therein set forth, we did not deem it necessary
to specify the processes to which said
proclamation should be construed to refer. As
some doubt still lingers in the minds of person
interested in sustaining a contrary
interpretation or construction, we are now
constrained to say that the term as used in the
proclamation should be construed to mean
legislative and constitutional processes, by
virtue of the maxim "noscitur a sociis."
According to this maxim, where a particular
word or phrase is ambiguous in itself or is
equally susceptible of various meaning, its
meaning may be made clear and specific by
considering the company in which it is found.
(Black on Interpretation of Laws, 2d ed., pp.
194-196.) Since the proclamation provides
that "all laws, regulations and processes of any
other government in the Philippines than that
of the said Commonwealth are null and void,"
the word "processes" must be interpreted or
construed to refer to the Executive
Commission, Ordinances promulgated by the
President of the so-called Republic of the
Philippines, and the Constitution itself of said
Republic, and others that are of the same class
as the laws and regulations with which the
world "processes" is associated.
As the said judicial acts which apply the
municipal laws, that is, such as affect private
rights or persons and property and provide for
the punishment of crimes, are good and valid
even after occupation has ceased, although it is
true that no crucial instances exist to show
that, were they reversed or invalidated by the
restored or legitimate government,
international wrong would be committed, it is
nonetheless true and evident that by such
abrogation national wrong would be caused to
the inhabitants or citizens of the legitimate
government. According to the law of nations
and Wheaton himself, said judicial acts are
legal and valid before and after the occupation
has ceased and the legitimate government has
been restored. As there are vested rights
which have been acquired by the parties by
virtue of such judgments, the restored
government or its representative cannot
reverse or abrogate them without causing
wrong or injury to the interested parties,
because such reversal would deprive them of
their properties without due process of law.
FACTS: Co Kim Chan had a pending civil case,
initiated during the Japanese occupation, with
the Court of First Instance of Manila. After the
Liberation of the Manila and the American
occupation, Judge Arsenio Dizon refused to
continue hearings on the case, saying that a
proclamation issued by General Douglas
MacArthur had invalidated and nullified all
judicial proceedings and judgments of the
courts of the Philippines and, without an
enabling law, lower courts have no jurisdiction
to take cognizance of and continue judicial
proceedings pending in the courts of the
defunct Republic of the Philippines (the
Philippine government under the Japanese).
The court resolved three issues:
1. Whether or not judicial proceedings and
decisions made during the Japanese
occupation were valid and remained valid
even after the American occupation;
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2. Whether or not the October 23, 1944
proclamation MacArthur issued in which he
declared that “all laws, regulations and
processes of any other 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” invalidated all
judgments and judicial acts and proceedings of
the courts;
3. And whether or not if they were not
invalidated by MacArthur’s proclamation,
those courts could continue hearing the cases
pending before them.
RATIO: Political and international law
recognizes that all acts and proceedings of a de
facto government are good and valid. The
Philippine Executive Commission and the
Republic of the Philippines under the Japanese
occupation may be considered de facto
governments, supported by the military force
and deriving their authority from the laws of
war.
Municipal laws and private laws, however,
usually remain in force unless suspended or
changed by the conqueror. Civil obedience is
expected even during war, for “the existence of
a state of insurrection and war did not loosen
the bonds of society, or do away with civil
government or the regular administration of
the laws. And if they were not valid, then it
would not have been necessary for MacArthur
to come out with a proclamation abrogating
them.
The second question, the court said, hinges on
the interpretation of the phrase “processes of
any other government” and whether or not he
intended it to annul all other judgments and
judicial proceedings of courts during the
Japanese military occupation.
IF, according to international law, non-
political judgments and judicial proceedings of
de facto governments are valid and remain
valid even after the occupied territory has
been liberated, then it could not have been
MacArthur’s intention to refer to judicial
processes, which would be in violation of
international law.
A well-known rule of statutory construction is:
“A statute ought never to be construed to
violate the law of nations if any other possible
construction remains.”
Another is that “where great inconvenience
will result from a particular construction, or
great mischief done, such construction is to be
avoided, or the court ought to presume that
such construction was not intended by the
makers of the law, unless required by clear
and unequivocal words.”
Annulling judgments of courts made during
the Japanese occupation would clog the
dockets and violate international law,
therefore what MacArthur said should not be
construed to mean that judicial proceedings
are included in the phrase “processes of any
other governments.”
In the case of US vs Reiter, the court said that
if such laws and institutions are continued in
use by the occupant, they become his and
derive their force from him. The laws and
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courts of the Philippines did not become, by
being continued as required by the law of
nations, laws and courts of Japan.
It is a legal maxim that, excepting of a political
nature, “law once established continues until
changed by some competent legislative power.
IT IS NOT CHANGED MERELY BY CHANGE OF
SOVEREIGNTY.” Until, of course, the new
sovereign by legislative act creates a change.
Therefore, even assuming that Japan legally
acquired sovereignty over the Philippines, and
the laws and courts of the Philippines had
become courts of Japan, as the said courts and
laws creating and conferring jurisdiction upon
them have continued in force until now, it
follows that the same courts may continue
exercising the same jurisdiction over cases
pending therein before the restoration of the
Commonwealth Government, until abolished
or the laws creating and conferring
jurisdiction upon them are repealed by the
said government.
HELD: Writ of mandamus issued to the judge
of the Court of First Instance of Manila,
ordering him to take cognizance of and
continue to final judgment the proceedings in
civil case no. 3012.
Summary of ratio:
1. International law says the acts of a de facto
government are valid and civil laws continue
even during occupation unless repealed.
2. MacArthur annulled proceedings of other
governments, but this cannot be applied on
judicial proceedings because such a
construction would violate the law of nations.
3. Since the laws remain valid, the court must
continue hearing the case pending before it.
***3 kinds of de facto government: one
established through rebellion (govt gets
possession and control through force or the
voice of the majority and maintains itself
against the will of the rightful government)
through occupation (established and
maintained by military forces who invade and
occupy a territory of the enemy in the course
of war; denoted as a government of paramount
force) through insurrection (established as an
independent government by the inhabitants of
a country who rise in insurrection against the
parent state)
THE PEOPLE OF THE PHILIPPINES v.
LORETA GOZO
G.R. No. L-36409 October 26, 1973
CASE DOCTRINE:
SOVEREIGNTY IS COMPREHENSIVE, BUT
ITS EXERCISE MAY BE RESTRICTED. Much
less is a reversal indicated because of the
alleged absence of the rather novel concept of
administrative jurisdiction on the part of
Olongapo City. Nor is novelty the only thing
that may be said against it. Far worse is the
assumption at war with controlling and
authoritative doctrines that the mere
existence of military or naval bases of a foreign
country cuts deeply into the power to govern.
Two leading cases may be cited to show how
offensive is such thinking to the juristic
concept of sovereignty, People v. Acierto, and
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Reagan v. Commissioner of Internal Revenue.
As was so emphatically set forth by Justice
Tuason in Acierto: "By the Agree it should be
noted, the Philippine Government merely
consents that the United States exercise
jurisdiction in certain cases. The consent was
given purely as a matter of comity, courtesy, or
expediency. The Philippine Government has
not abdicated its sovereignty over the bases as
part of the Philippine territory or divested
itself completely of jurisdiction over offenses
committed therein. Under the terms of the
treaty, the United States Government has prior
or preferential but not exclusive jurisdiction of
such offenses. The Philippine Government
retains not only jurisdictional rights not
granted, but also all such ceded rights as the
United States Military authorities for reasons
of their own decline to make use of. The first
proposition is implied from the fact of
Philippine sovereignty over the bases; the
second from the express provisions of the
treaty." There was a reiteration of such a view
in Reagan. Thus: "Nothing is better settled
than that the Philippines being independent
and sovereign, its authority may be exercised
over its entire domain. There is no portion
thereof that is beyond its power. Within its
limits, its decrees are supreme, its commands
paramount. Its laws govern therein, and
everyone to whom it applies must submit to its
terms. That is the extent of its jurisdiction,
both territorial and personal. Necessarily,
likewise, it has to be exclusive. If it were not
thus, there is a diminution of its sovereignty."
Then came this paragraph dealing with the
principle of auto-limitation: "It is to be
admitted that any state may, by its consent,
express or implied, submit to a restriction of
its sovereign rights. There may thus be a
curtailment of what otherwise is a power
plenary in character. That is the concept of
sovereignty as auto-limitation, which, in the
succinct language of Jellinek, 'is the property of
a state-force due to which it has the exclusive
capacity of legal self-determination and self-
restriction.' A state then, if it chooses to, may
refrain from the exercise of what otherwise is
illimitable competence." The opinion was at
pains to point out though that even then, there
is at the most diminution of jurisdictional
rights, not in appearance. The words
employed follow: "Its laws may as to some
persons found within its territory no longer
control. Nor does the matter end there. It is not
precluded from allowing another power to
participate in the exercise of jurisdictional
right over certain portions of its territory. If it
does so, it by no means follows that such areas
become impressed with an alien character.
They retain their status as native soil. They are
still subject to its authority. Its jurisdiction
may be diminished, but it does not disappear.
So it is with the bases under lease to the
American armed forces by virtue of the
military bases agreement of 1947. They are
not and cannot be foreign territory."
FACTS: Loreta Gozo bought a house and lot
which was located inside the US Naval
Reservation which is within the territorial
jurisdiction of Olongapo City. Upon the advice
of an assistant in the Mayor’s Office and some
neighbors, she demolished the house standing
thereon without acquiring the necessary
permits and then later on erected another
house. She was then charged by the City
Engineer’s Office for violating a municipal
order which requires her to secure permits for
any demolition and/or construction within the
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City. She was convicted in violation thereof by
the lower court. She appealed and countered
that the City of Olongapo has no
administrative jurisdiction over the said lot
because it is within a Naval Base of a foreign
country.
ISSUE: Is the Municipal Ordinance enforceable
within the US Naval Base?
HELD: Yes. The Philippine Government has
not abdicated its sovereignty over the bases as
part of the Philippine territory or divested
itself completely of jurisdiction over offenses
committed therein. Under the terms of the
treaty, the United States Government has prior
or preferential but not exclusive jurisdiction of
such offenses. The Philippine Government
retains not only jurisdictional rights not
granted, but also all such ceded rights as the
United States Military authorities for reasons
of their own decline to make use of (Military
Bases Agreement). Hence, in the exercise of its
sovereignty, the State through the City of
Olongapo does have administrative
jurisdiction over the lot located within the US
Naval Base.
ANASTACIO LAUREL v. ERIBERTO MISA
G.R. No. L-409 January 30, 1947
CASE DOCTRINE:
LAW ON TREASON, THOUGH POLITICAL IN
NATURE, IS NOT SUSPENDED DURING
BELLIGERENT OCCUPATION. Considering
that the absolute and permanent allegiance of
the inhabitants of a territory occupied by the
enemy to their legitimate government or
sovereign is not abrogated or severed by the
enemy occupation, because the sovereignty of
the government or sovereign de jure is not
transferred thereby to the occupier, as we
have held in the cases of Co Kim Cham v~.
Valdez Tan Keh and Dizon (75 Phil., 113) and
of Peralta vs. Director of Prisons (75 Phil., 285),
and if it is not transferred to the occupant it
must necessarily remain vested in the
legitimate government; that the sovereignty
vested in the titular government (which is the
supreme power which governs a body politic
or society which constitute the state) must be
distinguished from the exercise of the rights
inherent thereto, and may be destroyed, or
severed and transferred to another, but it
cannot be suspended because the existence of
sovereignty cannot be suspended without
putting it out of existence or divesting the
possessor thereof at least during the so-called
period of suspension; that what may be
suspended is the exercise of the rights of
sovereignty with the control and government
of the territory occupied by the enemy passes
temporarily to the occupant; that the
subsistence of the sovereignty of the
legitimate government in a territory occupied
by the military forces of the enemy during the
war, 'although the former is in fact prevented
from exercising the supremacy over them' is
one of the 'rules of international law of our
times'; (II Oppenheim, 6th Lauterpach ed.,
1944, p. 482), recognized, by necessary
implication, in articles 23, 44, 45, and 52 of
Hague Regulation; and that, as a corollary of
the conclusion that the sovereignty itself is not
suspended and subsists during the enemy
occupation, the allegiance of the inhabitants to
their legitimate government or sovereign
subsists, and therefore there is no such thing
as suspended allegiance, the basic theory on
which the whole fabric of the petitioner's
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contention rests
Considering that even adopting the words
'temporary allegiance,' repudiated by
Oppenheim and other publicists, as
descriptive of the relations borne by the
inhabitants of the territory occupied by the
enemy toward the military government
established over them, such allegiance may, at
most, be considered similar to the temporary
allegiance which a foreigner owes to the
government or sovereign of the territory
wherein he resides in return for the protection
he receives as above described, and does not
do away with the absolute and permanent
allegiance which the citizen residing in a
foreign country owes to his own government
or sovereign; that just as a citizen or subject of
a government or sovereign may be prosecuted
for and convicted of treason committed in a
foreign country, in the same way an inhabitant
of a territory occupied by the military forces of
the enemy may commit treason against his
own legitimate government or sovereign if he
adheres to the enemies of the latter by giving
them aid comfort; and that if the allegiance of
a citizen or subject to his government or
sovereign is nothing more than obedience to
its laws in return for the protection he receives,
it would necessarily follow that a citizen who
resides in a foreign country or state would, on
one hand, ipso facto acquire the citizenship
thereof since he has to obey, with certain
exceptions, the laws of that country which
enforce public order and regulate the social
and commercial life, in return for the
protection he receives, and would, on the
other hand, lose his original citizenship,
because he would not be bound to obey most
of the laws of his own government or
sovereign, and would not receive, while in a
foreign country, the protection he is entitled to
in his own;
Considering that, as a corollary of the
suspension of the exercise of rights of
sovereignty by the legitimate government in
the territory occupied by the enemy military
forces, because the authority of the legitimate
power to govern has passed into the hands of
the occupant (Article 43, Hague Regulations),
the political laws which prescribe the
reciprocal rights, duties and obligation of
government and citizens, are suspended or in
abeyance during military occupation (Co Kim
Cham vs. Valdez Tan Keh and Dizon, supra), for
the only reason that as they exclusively bear
relation to the ousted legitimate government,
they are inoperative or not applicable to the
government established by the occupant; that
the crimes against national security, such as
treason and espionage, inciting to war,
correspondence with hostile country, flight to
enemy's country, as well as those against
public order, such as rebellion, sedition, and
disloyalty, illegal possession of firearms,
which are of political complexion because they
bear relation to, and are penalized by our
Revised Penal Code as crimes against the
legitimate government, are also suspended or
become inapplicable as against the occupant,
because they can not be committed against the
latter (Peralta 1.S. Director of Prisons, supra);
and that, while the offenses against public
order to be preserved by the legitimate
government were inapplicable as offenses
against the invader for the reason above stated,
unless adopted by him, were also ill operative
as against the ousted government for the latter
was not responsible for the preservation of the
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public order in the occupied territory, yet
article 114 of the said Revised Penal Code, was
applicable to treason committed against the
national security of the legitimate government,
because the inhabitants of the occupied
territory were still bound by their allegiance to
the latter during the enemy occupation;
Considering that, although the military
occupant is enjoined to respect or continue in
force, unless absolutely prevented by the
circumstances, those laws that enforce public
order and regulate the social and commercial
life of the country, he has, nevertheless, all the
powers of a de facto government and may, at
his pleasure, either change the existing laws or
make new ones when the exigencies of the
military service demand such action, that is,
when it is necessary for the occupier to do so
for the control of the country and the
protection of his army, subject to the
restrictions or limitations imposed by the
Hague Regulations, the usages established by
civilized nations, the laws of humanity and the
requirements of public conscience ( Peralta vs.
Director of Prisons, supra; 1940 United States
Rules of Land Warfare 76, 77); and that,
consequently, all acts of the military occupant
dictated within these limitations are
obligatory upon the inhabitants of the
territory, who are bound to obey them, and the
laws of the legitimate government which have
not been adopted, as well and those which,
though continued in force, are in conflict with
such laws and orders of the occupier, shall be
considered as suspended or not in force and
binding upon said inhabitants;
Considering that, since the preservation of the
allegiance or the obligation of fidelity and
obedience of a citizen or subject to his
government or sovereign does not demand
from him a positive action, but only passive
attitude or forbearance from adhering to the
enemy by giving the latter aid and comfort, the
occupant has no power, as a corollary of the
preceding consideration, to repeal or suspend
the operation of the law of treason, essential
for the preservation of the allegiance owed by
the inhabitants to their legitimate government,
or compel them to adhere and give aid and
comfort to him; because it is evident that such
action is not demanded by the exigencies of
the military service or not necessary for the
control of the inhabitants and the safety and
protection of his army, and because it is
tantamount to practically transfer temporarily
to the occupant their allegiance to the titular
government or sovereign; and that, therefore,
if an inhabitant of the occupied territory were
compelled illegally by the military occupant,
through force, threat or intimidation, to give
him aid and comfort, the former may lawfully
resist and die if necessary as a hero, or submit
thereto without becoming a traitor;
Considering that adoption of the petitioner's
theory of suspended allegiance would lead to
disastrous consequences for small and weak
nations or states, and would be repugnant to
the laws of humanity and requirements of
public conscience, for it would allow invaders
to legally recruit or enlist the Quisling
inhabitants of the occupied territory to fight
against their own government without the
latter incurring the risk of being prosecuted
for treason, and even compel those who are
not to aid them in their military operation
against the resisting enemy forces in order to
completely subdue and conquer the whole
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nation, and thus deprive them all of their own
independence or sovereignty — such theory
would sanction the action of invaders in
forcing the people of a free and sovereign
country to be a party i n the nefarious task of
depriving themselves of their own freedom
and independence and repressing the exercise
by them of their own sovereignty; in other
words, to commit a political suicide.
FACTS: Anastacio Laurel filed a petition for
habeas corpus contending that he cannot be
prosecuted for the crime of treason defined
and penalized by the Article 114 of the Revised
Penal Code on the grounds that the
sovereignty of the legitimate government and
the allegiance of Filipino citizens was then
suspended, and that there was a change of
sovereignty over the Philippines upon the
proclamation of the Philippine Republic.
ISSUE:
1. Is the absolute allegiance of the citizens
suspended during Japanese occupation?
2. Is the petitioner subject to Article 114 of
the Revised Penal Code?
HELD: The absolute and permanent allegiance
of the inhabitants of a territory occupied by
the enemy of their legitimate government on
sovereign is not abrogated or severed by the
enemy occupation because the sovereignty of
the government or sovereign de jure is not
transferred to the occupier. There is no such
thing as suspended allegiance.
The petitioner is subject to the Revised Penal
Code for the change of form of government
does not affect the prosecution of those
charged with the crime of treason because it is
an offense to the same government and same
sovereign people.
RAMON RUFFY, ET AL. v. THE CHIEF OF
STAFF, PHILIPPINE ARMY, ET AL.
G.R. No. L-533 August 20, 1946
CASE DOCTRINE:
THE SUSPENSION OF POLITICAL LAWS
DURING BELLIGERENT OCCUPATION DOES
NOT APPLY TO THE ENEMIES IN ARMS. The
rule invoked by counsel, namely, that laws of
political nature or affecting political relations
are considered superseded or in abeyance
during the military occupation, is intended for
the governing of the civil inhabitants of the
occupied territory. It is not intended for and
does not bind the enemies in arms. This is self-
evident from the very nature of things. The
paradox of a contrary ruling should readily
manifest itself. Under the petitioners' theory
the forces of resistance operating in an
occupied territory would have to abide by the
outlawing of their own existence. They would
be stripped of the very lifeblood of an army,
the right and the ability to maintain order and
discipline within the organization and to try
the men guilty of breach thereof.
FACTS: During the Japanese insurrection in
the Philippines, military men were assigned at
designated camps or military bases all over the
country. Japanese forces went to Mindoro
thus forcing petitioner and his band move up
the mountains and organize a guerilla outfit
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and call it the "Bolo area". A certain Capt.
Beloncio relieved Ruffy and fellow petitioners
of their position and duties in the "Bolo area"
by the new authority vested upon him because
of the recent change of command. Capt.
Beloncio was thus allegedly slain by Ruffy and
his fellow petitioners.
ISSUE: Whether or not the petitioners were
subject to military law at the time the offense
was committed, which was at the time of war
and the Japanese occupancy.
HELD: The Court held that the petitioners
were still subject to military law since
members of the Armed Forces were still
covered by the National Defense Act, Articles
of War and other laws even during an
occupation. The act of unbecoming of an
officer and a gentleman is considered as a
defiance of 95th Article of War held petitioners
liable to military jurisdiction and trial.
Moreover, they were operating officers, which
makes them even more eligible for the military
court's jurisdiction.
In consideration of the foregoing, the petition
has no merit and should be dismissed. Thus,
the petition is hereby DENIED.
ADDITIONAL FROM BERNAS PRIMER:
What is the force of the assertion of a
territorial claim in a constitution?
It should be remembered that a constitution is
municipal law. As such, it binds only the nation
promulgating it. Hence, a definition of national
territory in the constitution will bind
internationally only if it is supported by proof
that can stand in international law.
Why does the Constitution contain a
definition of National Territory?
Like the 1935 and 1973 Constitutions, the new
Constitution defines the national territory of
the Philippines. But the 1935 Constitution had
a very special reason for defining the National
Territory. To be effective, the 1935
Constitution had to be accepted by he
President of the United States. Since at the
time of the adoption of the 1935 Constitution
there was still some fear that the United States
government might dismember Philippine
territory, the delegates to the 1935
Constitution believed that such
dismemberment could be forestalled by
including a definition of Philippine territory in
the Constitution. It was argued that acceptance
of the Constitution by the U.S President would
oblige the American government to keep the
integrity of Philippine territory as defined in
the Constitution.
No such special reason compelled the
inclusion of a definition of National Territory
in the 1973 Constitution. Some delegates,
however, argued that a definition of national
territory should be placed in the constitution
for the preservation of the national wealth, for
national security, and as a manifestation of our
solidarity as a people. More importantly, it was
the wish of some to project in the Constitution
Philippine adherence to the “archipelagic
principle”
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The deliberations of the 1986 Constitutional
Commission on the subject repeated much of
the discussion of the 1971 Constitutional
Convention. In the end there was recognition
of the fact that an article on national territory
would have an educational value. Moreover,
there was apprehension that it would be
difficult to explain why after the 1935 and
1973 provisions on the national territory the
new Constitution should fail to provide for one.
Briefly, what is the scope of the national
territory defined in Article I, Section 1?
It includes: (1) the Philippine archipelago; (2)
all other territories over which the Philippines
has sovereignty or jurisdiction; and (3) the
territorial sea, the seabed, the subsoil, the
insular shelves, and other submarine areas
corresponding to (1) and (2). Moreover, (1)
and (2) consist of terrestrial, fluvial, and aerial
domains.
What is an archipelago?
An archipelago is a body of water studded with
islands.
Where exactly is the Philippine
archipelago situated?
The Philippine archipelago is that body of
water studded with islands which is
delineated in the Treaty of Paris on December
10, 1898, as modified by the Treaty of
Washington of November 7, 1900 and the
Treaty with Great Britain of January 2, 1930.
These are the same treaties that delineated
Philippine territory in Article I of the 1935
Constitution.
If these treaties delineate the Philippine
archipelago, why are they not mentioned in
the Constitution?
The 1973 Constitution omitted specific
mention of these treaties because
Constitutional Convention delegates wanted
to erase every possible trace of our colonial
history from the new organic document. The
new Constitution follows the lead of the 1973
Constitution.
What is included by the clause “all other
territories over which the Philippines has
sovereignty or jurisdiction”?
This includes any territory which presently
belongs or might in the future belong to the
Philippines through any of the internationally
accepted modes of acquiring territory.
Foremost among these territories are what are
referred to by the 1935 Constitution as “all
territory over which the present (1935)
Government of the Philippine Islands
exercises jurisdiction.” This had reference to
the Batanes Islands which, although
indisputably belonging to the Philippines,
apparently lay outside the lines drawn by the
Treaty of Paris.
It also includes what was referred to under the
1973 Constitution as territories “belonging to
the Philippines by historic right or legal title,”
that is, other territories which, depending on
available evidence, might belong to the
Philippines (e.g., Sabah, the Marianas,
Freedomland)
By dropping the phrase “belonging to the
Philippines by historic right or legal title”
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has not the Constitution in effect dropped
the Philippine claim to Sabah?
No, it has not. It has, however, avoided the use
of language historically offensive to Malaysia
and has used instead the clause “over which
the Philippines has sovereignty or jurisdiction.”
The clause neither claims nor disclaims Sabah.
It prescinds from an evaluation of the strength
of the Philippine claim. The formula is a
recognition of the fact that unilateral
assertions in a constitution, which is municipal
law, by themselves do not establish an
international right to a territory.
Were the U.S military bases in the
Philippines still part of Philippine
territory?
Definitely. The precise reason why the
Philippine government could cede part of its
authority over these bases to the United States
was the fact that they were part of the
Philippine territory over which the
government exercised sovereign control
(Reagan v. Commissioner; People v. Gozo)
What is the extent of the Philippine claim to
its aerial domain, territorial sea, the
seabed, the subsoil, the insular shelves, and
other submarine areas?
The Philippines lays claim to them to the
extent recognized by international law. The
definition of these areas and right of the
Philippines over these areas are provided for
in customary and conventional international
law, principally the 1982 Convention on the
Law of the Sea and the Chicago Convention on
International Civil aviation of 1944.

What is the special claim made by the
Philippines with respect to the “waters
around, between and connecting the
islands of the archipelago?”
The Philippines claims them as part of its
“internal waters” irrespective of their breadth
and dimension. This is one of the elements of
the archipelagic principle which is now
recognized by the 1982 Convention on the
Law of the Sea.
What is the other element of the
archipelagic principle?
The other element is the straight baseline
method of delineating the territorial sea. This
consists of drawing straight lines connecting
appropriate points on the coast without
departing to any appreciable extent from the
general direction of the coast. These baselines
divide the internal waters from the territorial
waters of an archipelago.
Does the 1982 Convention on the Law of the
Sea accept the entirety of the Philippine
position on the archipelagic principle?
Not exactly. The vast areas of water between
islands which the Philippines considers
internal waters (and therefore not subject to
the right of innocent passage) the 1982
Convention calls “archipelagic waters” subject
to the right of innocent passage through
passages designated by the archipelago
concerned.
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Has the Philippines recognized this
distinction?
No, because it is contrary to what Article I says
about these waters being internal. For this
reason, the Philippines ratified the 1982
Convention on the Law of the Sea with
reservations. However, in practical terms the
Philippines has designated sea lanes for
foreign vessels.
What are baselines?
Baselines are lines drawn along the low water
mark of an island or group of islands which
mark the end of the internal waters and the
beginning of the territorial sea. Each country
must draw its own baselines according to the
provisions of the Law of the Sea.
What is our Baseline Law?
RA 9522. This law provides for one baseline
around the archipelago and separate baselines
for the “regime of islands” outside the
archipelago.
Define a “state” and enumerate its
elements.
It is a community of persons more or less
numerous, permanently occupying a definite
portion of territory, independent of external
control, and possessing an organized
government to which the great body of
inhabitants render habitual obedience. Hence,
commentators break down the concept into
the following four elements: people, territory,
sovereignty, government. (Montevideo
Convention of 1933)
Distinguish “state” from “nation”.
Although for the purpose of political sociology
a state, which is a legal concept, may be
distinguished from nation, which is an ethnic
concept, for the purpose of constitutional law
the two terms are not distinct. The
Constitution uses them interchangeably to
designate the legal concept of state as defined
above.
Define “people”
As an element of a state, “people” simply
means a community of persons sufficient in
number and capable of maintaining the
continued existence of the community and
held together by a common bond of law. It is of
no legal consequence if they possess diverse
racial, cultural, or economic interests.
Define sovereignty.
Legal sovereignty is the supreme power to
affect legal interests either by legislative,
executive or judicial action. This is lodged in
the people but is normally exercised by state
agencies. Stated in terms of auto-limitation,
sovereignty “is the property of a state-force
due to which it has the exclusive capacity of
legal self-determination and self-restriction”
(Jellinek)
Political sovereignty is the sum total of all the
influences in a state, legal and non-legal, which
determine the course of law.
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Define “government.”
Government, as an element of a state, is
defined as “that institution or aggregate of
institutions by which an independent society
makes and carries out those rules of action
which are necessary to enable men to live in a
social state, or which are imposed upon the
people forming that society by those who
possess the power or authority of prescribing
them.”
Is this classification in Bacani v. Nacoco of
government function still valid?
The conceptual definitions of constituent and
ministrant functions are still acceptable.
However, the growing complexities of modern
society can necessitate a realignment. ACCFA v.
CUGCO. Among more recent decisions,
housing has been found to be a governmental
function since housing is considered an
essential service. PHHC v. Court of Industrial
Relations. But undertaking to supply water
for a price, as does the government
corporation National Irrigation Authority, is
considered a trade and not a governmental
activity. Spouses Fontanilla v. Hon.
Maliaman.
Was the government under Cory Aquino
and the Freedom Constitution a de jure
government?
Yes, because it was established by authority of
the legitimate sovereign, the people. It was a
revolutionary government established in
defiance of the 1973 Constitution. In re Letter
of Associate Justice Puno.
Was the government under Gloria
Macapagal Arroyo established after the
ouster of President Estrada de jure or de
facto merely?
De jure.
What law governed the revolutionary
government under Aquino?
The resulting government was indisputably a
revolutionary government bound by no
constitution or legal limitations except treaty
obligations that the revolutionary government,
as the de jure government in the Philippines,
assumed under international law. During the
interregnum from February 25, 1986 to March
24, 1986 before the Freedom Constitution
took effect by presidential proclamation, the
Bill of Rights under the 1973 Constitution was
not operative. However, the protection
accorded to individuals under the Covenant on
Civil and Political Rights and the Universal
Declaration remained in effect under
international law during the interregnum.
Republic v. Sandiganbayan
Describe the presidential form of
government.
Its principal identifying feature is what is
called the “separation of powers.” Legislative
power is given to the Legislature whose
members hold office for a fixed term;
executive power is given to a separate
Executive who also holds office for a fixed
term; and judicial power is held by an
independent Judiciary. The system is founded
on the belief that, by establishing equilibrium
among the three power holders, harmony will
result, power will not be concentrated, and
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thus tyranny will be avoided. Because of the
prominent position, however, which the
system gives to the President as chief
executive, it is designated as a presidential
form of government.
What are the essential characteristics of a
parliamentary form of government?
They are the following: (1) The members of
the government or cabinet or the executive
arm are, as a rule, simultaneously members of
the legislature; (2) the government or cabinet
consisting of the political leaders of the
majority party or of a coalition who are also
members of the legislature, is in effect a
committee of the legislature; (3) the
government or cabinet has a pyramidal
structure at the apex of which is the Prime
Minister or his equivalent; (4) the government
or cabinet remains in power only for as long as
it enjoys the support of the majority of the
legislature; (5) both government and
legislature are possessed of control devices
with which each can demand of the other
immediate political responsibility. In the
hands of the legislature is the vote of non-
confidence (censure) whereby government
may be ousted. In the hands of government is
the power to dissolve the legislature and call
for new elections.
What constitutional forms of government
have been experienced by the Philippines
since 1935?
Presidential and presidential only. Even the
government of President Marcos under the
1973 Constitution, as revised in 1981, had the
distinguishing marks of a presidential form of
government: (1) separation of powers and (2)
the preeminence of the President. The
President was “head of state and chief
executive” (VII,1); he inherited the powers of
the President under the 1935 Constitution (VII,
16); he was superior to the Prime Minister by
the fact that he nominated the Prime Minister
(IX, 1), approved the program of government
to be administered by the Prime Minister (IX,
2), terminated the term of the Prime Minister
when he nominated the successor (IX, 4), and
could delegate powers to the Prime Minister.
He also had control over the ministries (VII, 7).
Moreover, while there was closer relationship
between the executive and the legislature (an
understatement!), thus manifesting “features
of parliamentarism,” there was separation
between them Separation from the Judiciary
also conceptually remained. Free Telephone
Workers union v. Minister of Labor
What is a “republican state?”
A republican state is a state wherein all
government authority emanates from the
people and is exercised by representative
chosen by the people.
Why is the Philippines also called a
“democratic state” by the new
Constitution?
In the view of the new Constitution the
Philippines is not only a representative or
republican state but also shares some aspects
of direct democracy such as “initiative and
referendum” in Article Vi, section 32, and
Article XVII, Section 2. The word “democratic”
is also a monument to the February Revolution
which re-won freedom through direct action
of the people.
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What is “constitutional authoritarianism”
and is it compatible with a “republican
state”?
“Constitutional Authoritarianism,” as
understood and practiced in the Marcos
regime under the 1973 Constitution, was the
assumption of extraordinary powers by the
President, including legislative and judicial
and even constituent powers. Constitutional
authoritarianism is compatible with a
republican state if the Constitution upon
which the Executive bases his assumption of
power is a legitimate expression of the
people’s will and if the Executive who assumes
power received his office through a valid
election by the people.
How do state, government and
administration differ from each other?
State is the corporate entity; government is
one of the elements of a state and is the
institution through which the state exercises
power, administration consists of the set of
people currently running the institution.
Administrations change without a change in
either state or government.
How are these affected by political
changes?
The transitions from the 1935 Constitution to
the 1973 Constitution, and from the 1973
Constitution to the 1987 Constitution involved
changes of government but not of state. The
transition from President Estrada to President
Arroyo did not involve a change of
government but only of administration.
From Utopia Notes:
Archipelago Archipelagic State Archipelagic
Waters Philippine Archipelago
A. Archipelago
Archipelago is a body of water studded with
islands.
Q: Do you consider the Spratlys Group of
Islands as part of Philippine Archipelago?
A: No. It is far from the three main islands of
the Philippines and it is not covered by what
was ceded in the Treaty of Paris.
Q: Do you consider the Spratlys group of
Islands as part of the National Territory?
A: Yes. Under the 2nd phrase, “...and all other
territories over which the Philippines has
sovereignty and jurisdiction...” Basis: Discovery
of Tomas Cloma in the 1950s. Cloma waived his
rights over the islands in favor of the
Philippine government. Philippine troops then
occupied the islands. Marcos issued PD 1956
constituting Spratllys islands as a regular
municipality (Municipality of Kalayaan) under
the Province of Palawan. In May 20, 1980, the
Philippines registered its claim with the UN
Secretariat.
B. Archipelagic State
Archipelagic state means a state constituted
wholly by one or more archipelagos and may
include other islands. (Article 46 (a) of
UNCLOS)
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C. Archipelagic Waters
According to UNCLOS, Archipelagic waters
refers to areas enclosed as internal waters by
using the baseline method which had not
been previously considered as internal
waters. (See Article 53 of UNCLOS)
Article 8(2) of UNCLOS: Where the
establishment of a straight baseline in
accordance with the method set forth in Article
7 has the effect of enclosing as internal waters
areas which had not previously been considered
as such, a right of innocent passage as provided
in this Convention shall exist in those waters.
According to UNCLOS, in “archipelagic waters”,
a right of innocent passage shall exist in these
waters. But, the Philippines made a
reservation, thus, “ The concept of archipelagic
waters is similar to the concept of internal
waters under the Constitution of the Philippines,
and removes straits connecting these waters
with the economic zone or high sea from the
rights of foreign vessel to transit passage for
international navigation.”
Bernas: The reservation is ad cautelam. The
claim made in the Constitution took effect in
1973 before the 1982 Law of the Sea
Convention was formulated. Article 8(2) of the
Convention itself says that the new rule on
archipelagic waters applies only to “areas
which had not previously been considered as”
internal waters.
D. Philippine Archipelago
The Philippine archipelago is that body of
water studded with islands which is
delineated in the Treaty of Paris, modified by
the Treaty of Washington and the Treaty of
Great Britain.
Archipelagic Doctrine Archipelago Doctrine
of Article I Elements of Archipelagic
Doctrine Purpose of Archipelagic Doctrine
A. Archipelagic Doctrine
(1989 Bar Question)
It is the principle whereby the body of water
studded with islands, or the islands
surrounded with water, is viewed as a unity
of islands and waters together forming one
integrated unit. For this purpose, it requires
that baselines be drawn by connecting the
appropriate points of the “outermost islands
to encircle the islands within the archipelago.
We consider all the waters enclosed by the
straight baselines as internal waters.
B. Elements of Archipelagic Doctrine
1. Definition of internal waters
2. The straight line method of delineating the
territorial sea.
Straight Baseline Method- drawn connecting
selected points on the coast without departing
to any appreciable extent from the general
direction of the coast. RA 3046 and RA 5446
have drawn straight baselines around the
Philippines.
(The problem with the straight baseline
method is that it conflicts with the Law of the
Sea because it recognizes the right of innocent
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passage in archipelagic waters. That is why we
made a reservation. However, as Bernas
pointed out, the reservation is ad cautelam)
C. Purposes of Archipelagic Doctrine
1. Territorial Integrity 

2. National Security 

3. Economic reasons 

It is said that the purpose of archipelagic
doctrine is to protect the territorial integrity of
the archipelago. Without it, there would be
“pockets of high seas” between some of our
islands and islets, thus foreign vessels would
be able to pass through these “pockets of seas”
and would have no jurisdiction over them.
D. Archipelago Doctrine in Article I, Section
1
(1989 Bar Question)
“The waters around, between and connecting
the islands of the archipelago, regardless of
their breadth and dimensions, form part of
internal waters of the Philippines”
Q: Differentiate archipelagic waters,
territorial sea and internal waters. (2004
Bar Question)

A: According to UNCLOS, Archipelagic waters
refers to areas enclosed as internal waters by
using the baseline method which had not
been previously considered as internal
waters. (See Article 53 of UNCLOS)
Territorial sea is an adjacent belt of sea with a
breadth of 12 nautical miles measured from
the baselines of a state and over which the
state has sovereignty. (Article 2, 3 of UNCLOS)
Internal waters refer to “all waters landwards
from the baseline of the territory.” Is from
which the breadth of territorial sea is
calculated. (Brownlie, Principles of PIL) No
right of innocent passage for foreign vessels
exist in the case of internal waters. (Harris,
Cases and Material on International Law, 5th
ed., 1998, p.407)
Under Section 1, Article I of the 1987
Constitution, the internal waters of the
Philippines consist of the waters around
between and connecting the islands of the
Philippine archipelago regardless of their
breadth and dimensions including the waters
in bays, rivers, and lakes.
Q: Distinguish briefly but clearly between
the contiguous zone and the exclusive
economic zone. (2004 Bar Question)
Contiguous zone is a zone contiguous to the
territorial sea and extends up to twelve
nautical miles from the territorial sea and over
which the coastal state may exercise control
necessary to prevent infringement of its
customs, fiscal, immigration or sanitary laws
and regulations within its territory or
territorial sea. (Article 33 of the Convention on
the Law of the Sea.)
The EEZ extends 200 nautical miles from the
baseline. The EEZ is recognized in the UN
Convention on the Law of the Sea. Although it
is not part of the national territory, exclusive
economic benefit is reserved for the country
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within the zone.
By virtue of PD 1599, the Philippine declares
that it has sovereign rights to explore, exploit,
conserve and manage the natural resources of
the seabed, subsoil, and superjacent waters.
Other states are prohibited from using the
zone except for navigation and overflight,
laying of submarine cables and pipeline, and
other lawful uses related to navigation and
communication.
Q: Distinguish the flag state and the flag of
convenience. (2004 Bar Question)
Flag state means a ship has the nationality of
the flag of the state it flies, but there must be a
genuine link between the state and the ship.
(Article 91 of the Convention on the Law of the
Sea)
Flag of convenience refers to a state with
which a vessel is registered for various
reasons such as low or non-existent taxation
or low operating costs although the ship has
no genuine link with the state. (Harris, Cases
and Materials on International Law, 5th ed.,
1998, p. 425.)
Definition of a State Elements of a State
Government
 Acts of State
State Immunity
A. Definition of a State
A state refers to a community of persons, more
or less numerous, permanently occupying a
definite portion of territory, independent of
external control, and possessing an organized
government to which the great body of
inhabitants render habitual obedience.
B. Elements of a State
1. People
 2. Territory
 3. Sovereignty 4.
Government
3. Sovereignty
Definition
 Kinds
 Characteristics
 Effects of
Belligerent Occupation Effects of Change in
Sovereignty Dominium v. Imperium Jurisdiction
“Sovereignty resides in the people”

1. People a. Sovereignty

A community of persons sufficient in number The supreme and uncontrollable power

and capable of maintaining the continued
existence of the community and held together
by a common bond of law.
Different Meanings of “People” as used in
the Constitution:
inherent in a State by which that State is
governed.
In auto-limitation terms: It is the property of a
State- force due to which it has the exclusive
capacity of legal determination and restriction.

3. Inhabitants b. Kinds:

4. Electors
 1. Legal
 2. Political 3. Internal 4. External

Legal Sovereignty.
 Cruz: Legal sovereignty

5. Citizens 
 is the authority which has the power to issue
final commands. In our country, the Congress
6. Sovereign. The people organized is the legal sovereign.
collectively as a legal association is the
state which sovereignty resides.
 Bernas: Legal sovereignty is the supreme
power to affect legal interests either by
2. Territory legislative, executive or judicial action. This is
lodged in the people but is normally exercised
Territory is the fixed portion of the surface of by state agencies
the earth inhabited by the people of the state.
(Bernas: Political writers distinguish between
Territory as an element of a state means an legal sovereignty and political sovereignty. The
area over which a state has effective control. former is described as the supreme power to
make laws and the latter as the sum total of all
Read Province of North Cotabato v. influences in a state, legal or non-legal, which
Government of the Republic of the determine the course of law. Sinco prefers not
Philippines to make the distinction and places legal
sovereignty in the state itself considered as a

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juridical person.)
Political Sovereignty
Sum total of all the influences of a State, legal
and non-legal which determine the course of
law.
Internal Sovereignty
It refers to the power of the State to control its
domestic affairs. It is the supreme power over
everything within its territory.
External Sovereignty
Also known as Independence, which is
freedom from external control. It is the power
of State to direct its relations with other States.
c. Characteristics of Sovereignty
It is permanent, exclusive, comprehensive,
absolute, indivisible, inalienable, and
imprescriptible.
But wait, in the case of Tanada v. Angara, it
was held that sovereignty of a state cannot be
absolute. It is subject to limitations imposed
by membership in the family of nations and
limitations imposed by treaties. The
Constitution did not envision a hermit-type
isolation of the country from the rest of the
world. (2000 Bar Question)
(Read Province of Cotabato v. GRP. October 14,
2008)
d. Effects of Belligerent Occupation
As to political laws. No change of sovereignty
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during a belligerent occupation, the political
laws of the occupied territory are merely
suspended, subject to revival under the jus
postliminium upon the end of the occupation.
Note that the rule suspending political laws
affects only the civilian inhabitants of the
occupied territory and is not intended to bind
the enemies in arms. Also, the rule does not
apply to the law on treason although decidedly
political in character.
As to non-political laws. The non-political
laws are deemed continued unless changed
by the belligerent occupant since they are
intended to govern the relations of individuals
as among themselves and are not generally
affected by changes in regimes of rulers.
As for judicial decisions. As for judicial
decisions the same are valid during the
occupation and even beyond except those of a
political complexion, which are automatically
annulled upon the restoration of the legitimate
authority.
e. Effects of Change in Sovereignty
As to political laws. Where there is a change
in sovereignty, the political laws of the former
sovereign are not merely suspended but
abrogated unless they are retained or re-
enacted by positive act of the new sovereign.
As to non-political laws. Non-political laws,
continue in operation.
f. Imperium v. Dominium
Imperium. State’s authority to govern. Covers
such activities as passing laws, governing
territory, maintaining peace and order over it,
and defending against foreign invasion. This is
the authority possessed by the State embraced
in the concept of sovereignty.
Dominium. Capacity of the State to own
property. Covers such rights as title to land,
exploitation and use of it, and disposition or
sale of the same.
g. Jurisdiction
Jurisdiction is the manifestation of sovereignty.
The jurisdiction of the state is understood as
both its authority and the sphere of the
exercise of that authority.
Kinds of Jurisdiction:
1. Territorial jurisdiction- authority of the
state to have all persons and things within its
territorial limits to be completely subject to its
control and protection.
2. Personal jurisdiction- authority of the
state over its nationals, their persons,
property, and acts whether within or outside
its territory (e.g. Art. 15,CC)
3. Extra-territorial jurisdiction- authority of
the State over persons, things, or acts, outside
its territorial limits by reason of their effect to
its territory.
Examples: 1. Assertion of its personal
jurisdiction over its nationals abroad; or the
exercise of its rights to punish certain offenses
committed outside its territory against its
national interests even if the offenders are
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non-resident aliens;
7. By virtue of its relations with other states or
territories, as when it establishers a
colonial protectorate, or a
condominium, or administers a trust
territory, or occupies enemy territory
in the course of war; 

8. When the local state waives its jurisdiction
over persons and things within its
territory, as when a foreign army
stationed therein remains under the
jurisdiction of the sending states; 

9. by the principle of extra territoriality, as
illustrated by the immunities of the
head of state in a foreign country; 

10. Through the enjoyment or easements
or servitudes, such as the easement of
innocent passage or arrival under
stress; 

11. The exercise of jurisdiction by the
state in the high seas over its vessels;
over pirates; in the exercise of the right
to visit and search; and under the
doctrine of hot pursuit; 

12. The exercise of limited jurisdiction
over the contiguous zone and the
patrimonial sea, to prevent
infringement of its customs, fiscal,
immigration or sanitary regulations. 

h. Juristic Theory of Sovereignty
The legalistic and analytical view of
sovereignty considers the state as a
corporate entity, a juridical person. It takes
the state purely as a legal organism. It does not
have anything to do at all with its social and
historical background.
i. “Sovereignty resides in the PEOPLE”
The “people” in the sense in which it is used
here refers to the entire citizenry considered
as a unit.
regional provincial, city municipal and
barangay governments.
It does not include government entities which
are given a corporate personality separate and
distinct for the government and which are
governed by the corporation law.
2. Government v. Administration

4. Government
 Government. That Government is the institution through which

institution or aggregate of institutions by
which an independent society makes and
carries out those rules of action which are
necessary to enable men to live in a social state,
or which are impose upon the people forming
that society by those who possess the power
or authority of prescribing them.
C. Government
the state exercises power. Administration
consists of the set of people currently running
the institution.
3. Functions of Government
(1) Governmental (Constituent)- are the
compulsory functions which constitute the
very bonds of society.

(2) Proprietary (Ministerial)—optional

functions of the government for achieving a
1. Government of the Republic of the better life for the community. (Bacani v.
Philippines
 The Government of the Republic NACOCO)
of the Philippines is a term which refers to the
corporate governmental entity through Governmental Function
which the functions of government are
exercised throughout the Philippine Islands,
including, save as the contrary appears from
context, the various arms through which
political authority is made effective in said
Islands, whether pertaining to the central
Government or to the provincial or municipal •
branches or other form of local government.
(Section 2 of the Revised Administrative Code •
(1917).
•
On the national scale, the term “government of
the Philippines” refers to the three great •
departments. On the local level, it means the

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Implementation of the land reform may not
strictly be “constituent” in the sense of Bacani
but the compelling urgency with which the
Constitution speaks of social justice does not
leave any doubt that land reform is not an
optional but a compulsory function of
sovereignty. (ACCFA v. CUGCO)
The functions of the Veterans Federation of
the Philippines fall within the category of
sovereign functions. (Veterans Federation of
the Phils. V. Reyes 483 SCRA 526)
The Manila International Airport Authority is
a governmental instrumentality vested with
corporate powers to perform its governmental
function. It performs government functions
essential to the operation of an international
airport. (MIAA v. CA)
Housing is a governmental function since
housing is considered an essential service.
(PHHC v. CIR)
The NHA is tasked with implementing the
governmental program of providing mass
housing to meet the needs of Filipinos for
decent housing. The NHA is exempt from
paying docket fees in suits in relation to its
governmental functions. (Badillo v. Tayag)
• The (RCA) Rice and Corn Administration is a
government machinery to carry out declared
government policy to stabilize the price of
palay, rice, and corn and making it within the
reach of average consumers. Its activity of
buying and selling corn is only an incident to
its government function. Hence, it is exempt
from posting an appeal bond. (Republic v. CFI)
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The “AFP Retirement and Benefits System” is a
government entity and its funds are in the
nature of public funds (People v.
Sandiganbayan)
Proprietary Function
••
Undertaking to supply water for a price is
considered a trade and not a governmental
activity. (Spouses Fontanilla v. Maliaman)
Civil Aeronautics Administration is in charge
of the administration of MIA, it is performing
proprietary functions, hence it can be sued
even when the claim is based on a quasi-delict.
(CAA v. CA)
4. Doctrine of Parens Patriae
Literally, “parent of the people.” One of the
important tasks of the government is to act for
the State as parens patriae, or guardian of the
rights of the people.
5. Classification of Government on the
Basis of Legitimacy

1. De Jure Government
 2. De Facto
Government
De Jure Government. One established by
authority of the legitimate sovereign.
De Facto Government. One established in
defiance of the legitimate sovereign. It actually
exercises power or control without legal title.
3 Kinds of De Facto Government:
1. The government that gets possession and
control or, or usurps, by force or by the voice
of majority, the rightful legal government and
maintains itself against the will of the latter.
(Such as the government of England under the
Commonwealth, first by Parliament and later
by Cromwell as Protector.)
2. Established and maintained by invading
military forces. That established as an
independent government by the inhabitants of
a country who rise in insurrection against the
parent state (Such as the government of the
Southern Confederacy in revolt against the
Union during the war of secession in the
United States.)
3. Government of paramount force. That
which is established and maintained by
military forces who invade and occupy a
territory of enemy in the course of war.92
(Such as the cases of Castine in Maine, which
was reduced to a British possession in the war
of 1812, and Tampico, Mexico, occupied
during the war with Mexico by the troops of
the US.) (Co Kim Chan v. Valdez , 75 Phil 113)
Note:
The government under Cory Aquino and the
Freedom Constitution is a de jure government.
It was established by authority of the
legitimate sovereign, the people. It was a
revolutionary government established in
defiance of the 1973 Constitution. (In Re Letter
of Associate Justice Puno, 210 SCRA 589
(1992).
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The government under President Gloria
Macapagal Arroyo established after the ouster
of President Estrada is de jure government.
Sinco on Revolution or Direct State Action:
“It sometimes happens that the people rise in
revolt against the existing administration
[government] and through force or threats
succeed in altering the constituted organs of
the government. From the point of view of the
existing constitutional plan, that act is illegal;
but considered from the point of view of the
state as a distinct entity not necessarily bound
to employ a particular government or
administration to carry out its will, it is the
direct act of the state itself because it is
successful. As such, it is legal, for whatever is
attributable to the state is lawful. This is the
legal and political basis of the doctrine of
revolution.”
5. Presidential v. Parliamentary form of
government (2006 Bar Exam Question)
The presidential form of government’s
identifying feature is what is called the
“separation of powers.”
The essential characteristics of a
parliamentary form of government are:
13. The members of the government or
cabinet or the executive arm are, as a
rule, simultaneously members of the
legislature; 

14. The government or cabinet consisting
of the political leaders of the majority
party or of a coalition who are also
members of the legislature, is in effect
 a committee of the legislature; 
 diplomatic power, to extend recognition to a
newly-established foreign State or
15. The government or cabinet has a government.
pyramidal structure at the apex of
which is the Prime Minister or his Republic
 Republic is a representative
equivalent; 
 government run by the people and for the
people.
16. The government or cabinet remains in
power only for so long as it enjoys the Republican state is a state wherein all
support of the majority of the government authority emanates from the
legislature; 
 people and is exercised by representatives
chosen by the people.
17. Both government and legislature are
possessed of control devices which B. Essential Features of Republicanism
each can demand of the other
immediate political responsibility. In The essence of republicanism is
the hands of the legislature is the vote representation and renovation. The citizenry
of non-confidence (censure) whereby selects a corps of public functionaries who
government may be ousted. In the derive their mandate from the people and act
hands of the government is the power on their behalf, serving for a limited period
to dissolve the legislature and call for only, after which they are replaced or retained
new elections. at the option of their principal.

Q: What constitutional forms of government C. Manifestations of Republicanism

have been experienced by the Philippines
since 1935? 18. Ours is a government of laws and not
of men. (Villavicencio v. Lukban, 39
A: Presidential and presidential only. Phil 778) 


C. Acts of State 19. Rule of Majority (Plurality in elections)



An act of State is done by the sovereign power
of a country, or by its delegate, within the 20. Accountability of public officials 

limits of the power vested in him.
21. Bill of Rights 

Within particular reference to Political Law, an
act of State is an act done by the political 22. Legislature cannot pass irrepealable
departments of the government and not laws 

subject to judicial review. An illustration is the
decision of the President, in the exercise of his 23. Separation of powers 


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D. “Democratic State”

In the view of the new Constitution, the

Philippines is not only a representative or
republican state but also shares some aspects
of direct democracy such as “initiative and
referendum”. The word democratic is also a
monument to the February Revolution which
re-won freedom through direct action of the
people.

E. Constitutional Authoritarianism

Constitutional authoritarianism as
understood and practiced in the Marcos
regime under the 1973 Constitution, was the
assumption of extraordinary powers by the
President, including legislative and judicial
and even constituent powers.

Q: Is constitutional authoritarianism
compatible with a republican state?

A: Yes if the Constitution upon which the

Executive bases his assumption of power is a
legitimate expression of the people’s will and
if the Executive who assumes power received
his office through a valid election by the people.

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