Concept of The State

POLITICAL LAW REVIEW
KA-POLI NOTES ➔ On the same date, the CIR issued an assessment for
estate and inheritance taxes, which tax liabilities were
paid by the petitioner.
➔ When an amended return was filed, exemption from
taxes was claimed.
➔ Pending investigation, the CIR issued another
assessment for estate and inheritance taxes.
➔ The CIR denied the request for exemption on the ground
that the law of Tangier, Morocco is not reciprocal to
Section122 of the NIRC.
➔ Hence, the CIR demanded the payment of the sums
representing deficiency estate and inheritance taxes
including ad valorem penalties, surcharges, interests,
and compromise penalties.
➔ Campos Rueda requested for the reconsideration of the
decision, denying his claim for tax exemption of the
intangible personal properties and the imposition of the
ad valorem penalties.
➔ CIR denied this request. It further premised its denial on
This reviewer is made out of love and fear for the law. Please the grounds that there was no reciprocity with Tangier, a
do not hesitate to share this material because sharing is caring mere principality and not a foreign country.
and karma always has its ways. #NoToCrabs ➔ Consequently, CIR demanded the payment.
➔ The matter was then elevated to the CTA. But since there
Concept of the State was no dispute between the parties regarding the values
of the properties and the mathematical correctness of
Article 1 of our 1987 Constitution stated the two groups of the deficiency assessments, the principal question as
our National Territory: noted dealt with the reciprocity aspect of Tangier not
➔ Sovereignty – “The national territory comprises the being a foreign country within the meaning of then
Philippine archipelago, with all the islands and waters Section 122 of the NIRC.
embraced therein, and all other territories over which the ➔ When it was already deemed submitted for decision, four
Philippines has sovereignty.” OR days thereafter, however, it was held by this Court that
➔ Jurisdiction – “Jurisdiction, consisting of its terrestrial, the aforesaid provision does not require that the foreign
fluvial, and aerial domains, including its territorial sea, country possess an international personality to come
the seabed, the subsoil, the insular shelves, and other within its terms.
submarine areas. ➔ The CTA does not subscribe to the idea that a foreign
country must satisfy the requisites of Statehood to fall
CIR vs. Campos Rueda within the exemption of the NIRC, and reversed the
G.R. No. L-13250. October 29, 1971 decision of the CIR, who held Campos Rueda liable for
the deficiency estate and inheritance taxes of the late
Facts: Cerdeira.
Issue: W/N Tangier is a foreign country within the meaning of
➔ Antonio Campos Rueda, as the administrator of the
estate of Cerdeira, filed a petition from the decision of the NIRC.
the CIR, assessing against and demanding P161,874.95
Held: Yes. According to Section 122 of the NIRC, no tax shall
as deficiency state and inheritance taxes, including
be collected under this title in respect of intangible personal
interests and penalties, on the transfer of in tangible
property if (a) the decedent, at the time of his death, was a
properties, which was owned by the deceased and is
resident of a foreign country which at the time of his death
situated in the Philippines.
did not impose a transfer tax or death tax of any character in
➔ The deceased, by reason of her marriage to a Spanish
respect of intangible personal property of citizens of the
citizen, became a Spanish national, and was a resident of
Philippines not residing in that foreign country; and (b) the
Tangier, Morocco from 1931 up to the time of her death
laws of the foreign country of which the decedent was a
in 1955.
resident, at the time of his death, allow a similar exemption
➔ At the time of her death, she left intangible personal
from transfer taxes or death taxes for every character in
properties in the Philippines.
respect of intangible personal property owned by citizens of
➔ Thus, her administrator, Campos Rueda, filed a the Philippines not residing in that foreign country.
provisional estate and inheritance tax return on all the
properties of the deceased.
POLI RECIT Qs / CONCEPT OF THE STATE

KA-POLI NOTES 2020-2021
Dione Maghirang / Lara Murallos / Tin Narne-Pedralvez / Fergie Villanueva
It is without doubt that if a foreign country is to be identified organized by common consent for mutual defense and
with a State, it is required in line with Pound’s formulation that mutual safety and to promote the general welfare.
it be a politically organized sovereign community
independent of outside control bound by ties of nationhood, What is the meaning of Nation?
legally supreme within its territory, acting though a A people bound together by common attractions and
government functioning under a regime of law. repulsions into a living organism possessed of common pulse,
intelligence, inspiration, faith, and history.
➔ Foreign Country – A body-politic organized by common
consent for mutual defense and mutual safety and to Here, Justice Malcolm was referring to a “political entity”, and
promote the general welfare. not to a racial or ethnic entity.
➔ Esmein’s definition – The juridical personification of the
nation. Is the State same as a Nation?
➔ The stress is on its being a nation, its people occupying No. The term nation is used interchangeably with State, e.g,
a definite territory, politically organized, exercising by the United Nations of the family of nations, which actually
means of its government its sovereign will over the consists of states and not nations.
individuals within it and maintaining its separate
international personality. Nation vs. State
Nation State
➔ Laski’s definition – A territorial society divided into
government and subjects, claiming within its allotted  Legal or political
concept
area a supremacy over all other institutions.
➔ McIver’s definition – The power entrusted to its  A single state is also
 The “nation” by its possible to be made up
government to maintain within its territory the etymology (nasci, to of more than one
conditions of a legal order and to enter into international be born), indicates a nation, as in the case of
relations. relation of birth or the United States,
origin and implies a which was a “melting
➔ CIR vs. De Lara – It was held that Considering the State
common race, pot” of many nations
of California as a foreign country in relation to Section usually characterized which were eventually
122 of the NIRC, there can be no doubt that California as by community of amalgamated into the
a State in the American Union was lacking in the alleged language and “American Nation”.
requisite of international personality. Nonetheless, it was customs Malaysia’s population
held to be a foreign country within the meaning of  Only racial or ethnic consists of Malays and
Section 122 of the NIRC. concept Chinese.
➔ Even prior to the De Lara doctrine, the SC commit itself  Nation may  Indeed, a nation need
to the doctrine that even a tiny principality, one that is compromise several not be a state at all. As
hardly an international personality in the traditional states (Egypt, Iraq, demonstrated by the
Saudi Arabia, among Poles after the
sense, fall under this exempt category.
others, while each a dismemberment of
 Although Liechtenstein does not impose separate state, all their country in 1975
estate, inheritance, and gift taxes on intangible belong to the Arab and then again in
personal property of Filipino citizens not Nation) World War II or by the
residing in that country, pursuant to the Jews before the
exemption above established, no estate or creation of the State of
Israel in 1948.
inheritance taxes were collectible.
➔ Thus, where conditions are such that demand reciprocity,
Government State
the exemption must be honored—as in this case.
 Is only an element of
the State
Doctrine: An international person may be considered a  Is the principal
 Is the agent
foreign country even if it does not possess all the essential  State itself is an
elements of the State.
 It externalizes the abstraction
State and articulates
its will
What is a State?
According to Pound, a state is a politically organized Is the State same with a Foreign Country?
sovereign community independent of outside control bound No. Foreign country is different from a state; a foreign country
by penalties of nationhood, legally supreme within its does not need to possess the essential elements of a state. If
territory, acting through a government functioning under a a foreign country is to be identified with a state, it is required
regime of law. It is thus a sovereign person with the people in line with Pound's formulation, which provides that a state
composing it viewed as an organized corporate society under is a politically organized sovereign community independent
a government with the legal competence to exact obedience of outside control bound by penalties of nationhood, legally
to its commands. It has been referred to as a body-politic

supreme within its territory, acting through a government through a government functioning under a regime of
functioning under a regime of law. law.
(2.) A sovereign person with the people composing it viewed
How do we treat the intangible properties of the decedent? as an organized corporate society.
Exempted. The Congress chose to make an exemption where (3.) A body-politic organized by common consent for mutual
conditions are such that demand reciprocity and thus, the defense and mutual safety and to promote the general
exemption must be honored. welfare.
(4.) As described by Esmein as "the juridical personification
BASIS OF SUCH EXEMPTION of the nation."
Even prior to the De Lara doctrine, the SC commits itself to
the doctrine that even a tiny principality, one that is hardly an The stress is on its being a nation, its people occupying a
international personality in the traditional sense, falls under definite territory, politically organized, exercising by means of
this exempt category. its government its sovereign will over the individuals within it
and maintaining its separate international personality.
Law: Section 122 of the NIRC, no tax shall be collected under International law does not exact independence as a condition
this title in respect of intangible personal property if (a) the of statehood.
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 personal property of citizens of the Philippines not
residing in that foreign country; and (b) 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 for every character in respect of intangible
personal property owned by citizens of the Philippines not
residing in that foreign country.
Personality of Morocco How about recognition and degree of civilization?

An international person may be considered as a foreign Recognition by other states is not a precondition so that an
country even if it does not possess all the essential elements entity can attain the status of a statehood. While it is ideal that
of the state. The SC likewise applied the rule on reciprocity. the entity may be recognized by other international entities,
it is not required. Apart from recognition, it is also ideal for an
Is a Foreign Country also a State? international entity to have attained a certain level of
No, foreign country is different from a state; a foreign country civilization but this is not indispensable.
does not need to possess the essential elements of a state.. Essential elements of a State? (Montevideo Convention of
1933)
Is California a Foreign Country or a State as per the case of ➔ People
CIR vs. Campos Rueda?
➔ Territory
Yes. it was held to be a foreign country within the meaning of
➔ Sovereignty
Section 122 of the National Internal Revenue Code.
➔ Government
 Collector of Internal Revenue v. De Lara:
"Considering the State of California as a foreign
Is “recognition” an essential requisite?
country in relation to section 122 of our Tax Code,
Recognition by other States is not a precondition so that an
that the Ancillary Administrator is entitled the
entity can attain the status of Statehood. While it is ideal, it is
exemption from the inheritance tax on the
not required.
intangible personal property found in the
Philippines."
How about possession of a degree of civilization?
 There can be no doubt that California as a state in
It is also ideal for an international entity to have attained a
the American Union was in the alleged requisite of
certain level of civilization but it is not indispensable.
international personality.
Is there a legal requirement as to the number of people?

To be recognized as a State, a foreign country must comply
There is no requisite as to the number as long as the people
with the following requisites?
comprising the State must be capable of sustaining their
It is required in line with Pound's formulation that it be:
existence which means that it must come from both sexes for
(1.) A politically organized sovereign community
perpetuity.
independent of outside control bound by penalties of
nationhood, legally supreme within its territory, acting

People What are the legal requirements?
➔ The inhabitants of the State As a PRACTICAL requirement only, it must neither be too big
➔ Has a permanent population as to be difficult to administer and defend nor too small as to
➔ No requisite as to how many of people, as long as it is be unable to provide for the needs of the population. Further,
permanent and it is capable of sustaining their existence it must consist a fixed portion of the earth sustainable for life.
➔ Organized group of individuals, wherein a higher power
How about the Vatican?
exists
The case of Vatican City is an extraordinary case because the
recognition of the Vatican City as a state was only through the
What is the requirement to satisfy this requisite?
bilateral treaty between the Holy See and Italy (Lateran
In general, there is no requirement as to their number, but it
Treaty). Vatican City is considered as an independent state by
is generally agreed that they must be NUMEROUS ENOUGH
virtue of that treaty as a special consideration in order to
to be self-sufficing and to defend themselves and SMALL
administer the political affairs of the Roman Catholic Church.
ENOUGH to be easily administered and sustained.
Laos is land-locked. So, is it a State?

Is it allowed for a State to be recognized if, for example, all
Yes. As long as it complies with essential elements of a State,
the inhabitants are male?
whether it may be land-locked or surrounded by water, it is a
No. They must come from BOTH sexes to be able to
State.
perpetuate themselves.
May a territory outside the PH archipelago be considered a

What if male and female?
part of the territory of the Philippines?
Yes. Since they will be able to perpetuate.
Yes, as long as it is within our areal, fluvial, and maritime
zones.
Citizenship
Article IV, Section 1 of the 1987 Constitution
What is the territory of the Philippine State?
The following are citizens of the Philippines:
Article 1, of the 1987 Constitution (please see page 1)
(1.) Those who are citizens of the Philippines at the time of
the adoption of this Constitution;
What are the two groups of national territory?
(2.) Those whose fathers or mothers are citizens of the
Philippines; ➔ Philippine archipelago
(3.) Those born before January 17, 1973, of Filipino mothers, ➔ All other territories over which the Philippines has
who elect Philippine citizenship upon reaching the age sovereignty or jurisdiction
of majority; and
(4.) Those who are naturalized in accordance with law. Can there be a Philippine territory other than the archipelago?
Yes, according to Article 1 of our 1987 Constitution, “and all
Definition of “people” as per Sec. 5, Chapter 2 of EO 292 other territories over which the Philippines has sovereignty or
(same as Article IV, Sec 1) jurisdiction, consisting of its terrestrial, fluvial, and aerial
The following are citizens of the Philippines: domains, including its territorial sea, the seabed, the subsoil,
(1.) Those who are citizens of the Philippines at the time of the insular shelves, and other submarine areas”
the adoption of this Constitution;
(2.) Those whose fathers or mothers are citizens of the Can we say that the general description of territory in the 1987
Philippines; Constitution abandoned the specific definition in the 1935
(3.) Those born before January 17, 1973, of Filipino mothers, Constitution?
who elect Philippine citizenship upon reaching the age No. All other territories covered by the 1935 Constitution are
of majority; and deemed included in the general definition of national territory
(4.) Those who are naturalized in accordance with law. under the 1987 Constitution. Further, the 1987 Constitution
abided with international law (RE: RA 9522 + UNCLOS III_
Definition of “people” as per Sanidad vs. COMELEC
It is a particular organized assembly of individuals in which What is the definition of “National Territory” as per the 1935
according to the Constitution the highest power exists. Constitution?
The Philippines comprises all the territory ceded to the US by
Are those people who are simply sojourning also called the treaty of Paris concluded between the US and Spain on
citizens? the 10th day of December 1898, the limits of which are set
No. Not everyone who is in a country is a citizen. Citizens are forth in Article III of the said treaty, together with all the
those who owe permanent allegiance to a country. islands embraced in the treaty concluded at Washington,
between the US and Spain on the 7th day of November 1900,
Territory and in the treaty concluded between the US and Great Britain
The fixed portion of the surface of the earth inhabited by the on the 2nd day of January 1930, and all territory over which the
people of the state.

present Government of the Philippine Islands exercises contravening the country’s nuclear-free policy,
jurisdiction. and damaging marine resources, in violation
of relevant constitutional provisions.
What are the territories deemed included in the following?  The treatment of the KIG as a “regime of
➔ 1973 Constitution – Those which belong to the PH by islands” does not only result in loss of a large
historic right or legal title (Sabah and Borneo) maritime area, but also prejudices the
➔ Treaty of Paris – Cession of the PH Islands by Spain to livelihood of subsistence fishermen.
the US ➔ Respondents’ Comments
➔ Treaty of Washington – Cagayan de Sulu, Sibutu Islands  The petitioners lack locus standi.
➔ Treaty of Great Britain – Turtle and Mangsee Islands  The propriety of the writs of certiorari and
➔ Batanes Island Group – see: 1935 Constitution prohibition to assail the constitutionality of RA
9522.
➔ By historic right/legal title – Sabah and Borneo
 RA 9522 is the Philippines’ compliance with
the terms of UNCLOS III, preserving Philippine
Magallona vs. Ermita
territory over the KIG or Scarborough Shoal.
G.R. No. 187167. August 16, 2011
 RA 9522 does not undermine the country’s
security, environment, and economic interests
Facts:
or relinquish the Philippines’ claim over Sabah.
➔ Congress passed RA 3046 demarcating the maritime
 Questions the normative force, under
baselines of the Philippines as an archipelagic State. This
International Law of the assertion that what
law followed the framing of the Convention on the
Spain ceded to the US under the Treaty of
Territorial Sea and the Contiguous Zone in 1958
Paris were the islands and all the waters found
(UNCLOS I), codifying among others, the sovereign right
within the boundaries of the rectangular area
of State-parties over their “territorial sea”, the breadth of
drawn under the Treaty of Paris.
which was left undetermined.
Issue: W/N RA 9522 reduces Philippine maritime territory, the
➔ UNCLOS II – Attempts to determine the breadth of the Philippines’ sovereign power, in violation of Article 1 of the
territorial sea during the second round of Negotiations 1987 Constitution.
in Geneva in 1960. However, it was left futile. Held: No. UNCLOS III has nothing to do with the acquisition
➔ RA 3046 – Domestically, this RA remained unchanged for (or loss) of territory. It is a multilateral treaty regulating,
nearly 5 decades. among others, sea-use rights over maritime zones. Baseline
➔ RA 5446 – Corrected only typographical errors and laws such as RA 9522 are enacted by UNCLOS III State-parties
reserving the drawing of baselines around Sabah in to mark-out specific basepoints along their coasts from which
North Borneo. baselines are drawn, either straight or contoured, to serve as
➔ RA 9552 – The amendatory RA of 3046. The change was geographic starting points to measure the breadth of the
prompted by the need to make RA 3046 compliant with maritime zones and continental shelf. Baselines are nothing
the terms of UNCLOS III. but statutory mechanisms for UNCLOSS III State-parties to
➔ UNCLOS III – Prescribes the water-land ratio, length, and delimit with precision the extent of their maritime zones and
contour of baselines of archipelagic States like the continental shelves. This gives notice to the rest of the
Philippines and sets the deadline for the filing of international community of the scope of the maritime space
application for the extended continental shelf. and submarine areas within which State-parties exercise
➔ Complying with the requirements of UNCLOS III, RA9522 treaty-based rights. UNCLOS III and its ancillary baseline laws
shortened one baseline, optimized the location of some play no role in the acquisition, enlargement, or diminution of
basepoints around the Philippine archipelago, and territory.
classified adjacent territories (KIG and the Scarborough
Shoal) as “regime of islands” whose islands generate Archipelagic Doctrine: The waters around, between, and
their own applicable maritime zones. connecting the islands of the archipelago, regardless of their
➔ Petitioners’ Contentions – RA 9522 is unconstitutional breadth and dimensions, form part of the internal waters of
 It reduces the Philippine maritime territory, the Philippines. An archipelago, which consists of a number of
and logically, the reach of the Philippine islands
state’s sovereign power, in violation of Article
1 of the 1987 Constitution, embodying the Internal waters – Those waters around, between, and
terms of the Treaty of Paris and ancillary connecting (ABC)
treaties.
 It opens the country’s waters landward of the
baselines to maritime passage by all vessels
and aircrafts, undermining Philippine
sovereignty and national security,

Important Note: The signing shall not, in any manner, impair Had we not submitted RA 9522, what would be
or prejudice the sovereignty of the Republic of the Philippines the two-fronted disasters?
over any territory over which it exercises sovereign authority, ➔ It sends an open invitation to the seafaring powers to
such as the Kalayaan Islands, and the water appurtenant freely enter and exploit the resources in the waters and
thereto. UNCLOS III shall not be construed as amending in any submarine areas around our archipelago.
manner any pertinent laws and Presidential Decrees or ➔ It weakens the country’s case in any international dispute
Proclamations of the Republic of the Philippines. The PH over Philippine maritime space.
maintains and reserves the right and authority to make any
amendments to such laws, decrees, or proclamations pursuant What are the modes of acquisition or loss of territory?
to the provisions of the Philippine Constitution. The ➔ Occupation
provisions of UNCLOS III on archipelagic passage through sea ➔ Accretion
lanes do not nullify or impair the sovereignty of the
➔ Cession
Philippines as an archipelagic State over the sea lanes and do
➔ Prescription
not deprive it of authority to enact legislation to protect its
sovereign independence and security. The concept of
Is the Philippine archipelago a body of land?
archipelagic waters is similar to the concept of internal waters
No. It’s a body of water.
under the Constitution of the Philippines, and removes straits
connecting these waters with the economic zone or high sea
Why can’t we include Scarborough Shoal and KIG?
from the rights of foreign vessels to transit passage for
According to Senator Defensor-Santiago it violates Article
international navigation.
47(3) (not depart to any appreciable extent) and 47(2) (100nm)
of UNCLOS III. She reiterated that if we put them inside our
Essence of the Archipelagic Concept according to Minister baselines, we might be accused of violating the provisions of
Arturo Tolentino: The essence of the archipelagic concept is international law, which states that the drawing of such
the dominion and sovereignty of the archipelagic State within baselines shall not deport to any appreciable extent from the
its baselines, which were so drawn as to preserve the territorial general configuration of the archipelago.
integrity of the archipelago by the inseparable unity of the
land and water domain.
What is RA 9552 all about?

RA 9552 is a statutory tool to demarcate the country’s
maritime zones and continental shelf under UNCLOS III. It is
not to delineate Philippine territory. It is to localize UNCLOS
III, which prescribes the water-land ratio, length, and contour
of baselines of archipelagic states like the Philippines and sets
the deadline for the filing of application for the extended
continental shelf.
What is UNCLOS III all about?

It is a multilateral treaty regulating sea-use rights over
maritime zones. It merely gives notice to the rest of the
international community of the scope of the maritime space
and submarine areas within which State parties exercise
treaty-based rights like the exercise of sovereignty over
territorial waters, the jurisdiction to enforce customs, fiscal,
immigration, and sanitation laws, and the right to exploit the
living and non-living resources in the EEZ and Continental
shelf.
Did the SC agree that RA 9522 results to a loss of territory?

No. States acquire or lose territory by occupation, accretion,
cession, or prescription and not by executing multilateral
treaties which RA 9522 localized through a statute.
Is there a deadline set by the treaty?

Yes. 10 years from May 13, 1999.

States may also enjoy freedom of navigation
and overflight.
 The coastal State has the sovereign right of
exploring and exploiting, conserving and
managing the natural resources, living or non-
living, within the waters of the EEZ.
 Right of economic exploitation and
exploration.
 Right to establish and use artificial islands and
structures.
 Right to conduct marine scientific research.
 Duty of protecting and preserving the
Prior UNCLOS, how many nautical miles are entitled to the environment.
Philippines?
3nm NORMAL AND STRAIGHT BASELINES
➔ Normal baseline method – Low-water line along the
What are the waters beyond the jurisdiction of the Philippines coast marked on large-scale charts officially recognized
called? by the coastal state.
High seas. The high seas are free for all.  The low-water mark.
 The land is visible during low-tide.
What are the entitlements of the parties over the maritime
 Where sea water meets the temporary
zones?
shoreline created during low-tide.
➔ Internal waters – Waters on the landward side of the  The starting point for the measurement of the
baseline of the territorial sea. 12-mile territorial sea.
 The Philippines, whose archipelagic status has
➔ Straight baseline method – The State laying claim to the
been approved, is an exception to the rule
territorial sea draws straight line from selected points
although it follows the straight baseline
along the shoreline.
method.
 The State may enclose its land territory within
 It is expressly recognized in our constitution
straight lines connected to each other.
that the internal waters of the Philippines
 The drawing of the baselines must not depart
cannot be subject to the right of innocent
from the general direction of the coast and
passage.
must theoretically not exceed the 12nm limit.
➔ Territorial Sea – That belt of water immediately
 In archipelagic States like the Philippines, the
surrounding the country’s land mass.
breadth of the territorial sea, the contiguous
 12nm from the baseline (the one near the land, zone, the exclusive economic zone, and the
or the low-water mark). continental shelf shall be measured from the
 Cannon-shot rule – The territorial sea of a archipelagic baselines drawn by the coastal
country is three miles from the low water State.
mark.  Baselines either follow all the curves, bends,
 3-mile limit rule – Since the territorial sea is and sensuosities of the coast or are
part of a country’s land territory, it exercises established by drawing arcs of circles from
full and unquestioned sovereignty, it must be points along the low-water line.
able to physically protect such territory.
➔ Contiguous Zone – Is that which is adjoining or Continental shelf – A coastal State which comprises the sea-
bordering the territorial sea of a country. bed and subsoil of the submarine areas that extend beyond
 24nm from the baseline. its territorial sea throughout the natural prolongation of its
 Adjoining, bordering, or touching land territory, or to a distance of 200nm from the baselines
➔ Exclusive Economic Zone – A marine area including the from which the breadth of the territorial sea is measured
sub adjacent sea-bed and subsoil beyond and adjacent where the outer edge of the continental margin does not
to the territorial sea extending up to 200nm from the extend up to that distance1.
baselines.
 200nm from the baselines.  200nm from the Contiguous zone
 SOVEREIGN RIGHTS – Rights which fall short  It must not exceed 350nm
of absolute sovereignty since in the EEZ, other  Coastal margin – Comprises the submerged
prolongation of the land mass of the coastal State,
1 Article 76 of the LOSC

and consists of the sea-bed and subsoil of the shelf, Roadstead – A place less enclosed than a harbor where ships
the slope and the rise. It does not include the deep may anchor.
ocean floor with its oceanic ridges or the subsoil
thereof. INNOCENT PASSAGE
 Continental margin – consists of the following ➔ Passage is innocent as long as it is not prejudicial to the
 Continental shelf proper peace, good order or security of the coastal State.
 Continental slope ➔ Ships of all States enjoy the right of innocent passage
 Gradual slope through the territorial sea.
High seas – If a sea is not included in the EEZ of a State, nor is Innocent Passage2 - Passage of a foreign ship shall be
it the territorial sea, internal waters, or archipelagic waters of considered prejudicial if in the territorial sea it engages in any
an archipelagic State, then that sea belongs to the High Seas. of the following activities:
 The High Seas is reserved for peaceful purposes and  Any threat or use of force against the sovereignty,
no State may subject any part to its sovereignty. territorial integrity, or political independence of the
 The High Seas is accorded the following freedoms: coastal State, or in any other manner in violation of
o Freedom of Navigation; the principles of international law embodied in the
o Overflight; Charter of the UN;
o To lay submarine cables and pipelines;  Any exercise or practice with weapons of any kind;
o To construct artificial islands and other  Any act aimed at collecting information to the
installations permitted under international prejudice of the defense or security of the coastal
law; State;
o Fishing  Any act of propaganda aimed at affecting the
o Scientific research. defense or security of the coastal State;
 The launching, landing, or taking on board of any
The Area – Encompasses the deep seabed and subsoil beyond military device;
the national jurisdiction of any State. It is administered by the  The loading or unloading of any commodity,
International Seabed Authority, an autonomous organization currency, or person contrary to the customs, fiscal,
of the UN headquarted in Kingston, Jamaica. immigration, or sanitary laws and regulations of the
 Regarded as the common heritage of humankind to coastal State;
whom all its resources belong.  Any act of willful and serious pollution contrary to
 The legal status of the Area according to Article 137 this Convention;
of the LOSC:  Any fishing activities;
o No State shall claim or exercise sovereignty or  The carrying out of research or survey activities;
sovereign rights over any part of the Area or  Any act aimed at interfering with any systems of
its resources, nor shall any State or natural or communication or any other facilities or
juridical person appropriate any part thereof. installations of the coastal State; and
o All rights in the resources are vested in
 Any other activity not having direct bearing on
mankind as a whole, and are not subject to
passage.
alienation. The minerals may only be alienated
in accordance with the rules and regulations of
JURISDICTION OF COASTAL STATES
the authority.
➔ The criminal jurisdiction of the coastal State should not
o No State, or natural or juridical person shall
be exercised over crimes committed on board a foreign
claim, acquire, or exercise rights with respect
ship passing through its territorial sea, except:
to the minerals recovered. No claim,
 If the consequence extends to the coastal State;
acquisition, or exercise of such right shall be
 If disturbs the peace and order of the territorial sea;
recognized.
 If the assistance of the local authorities of the
THE MEANING OF PASSAGE coastal State is requested by the master of the
Passage – Navigation through the territorial sea for the vessel or diplomatic or consular agent; or
purpose of  If necessary, in order to suppress trafficking in illicit
• Traversing that sea without entering the internal drugs.
waters; ➔ Civil jurisdiction, Article 28 of the LOSC prohibits the
• Calling at a roadstead or port facility outside stopping or diversion of a foreign ship for the purpose
internal waters; or of exercising civil jurisdiction over a person on board the
• Proceeding to or from internal waters or a call at a ship. It protects the vessel from levy, execution, or arrest
roadstead or port facility. for the purpose of civpro, except:

 Obligations or liabilities assumed or incurred by  Drawing of such baselines shall not depart from any
the ship itself in the course or for the purpose of appreciable extent from the general configuration
its voyage through the waters of the coastal State. of the archipelago;
➔ Warships and government vessels operated for non-  Shall not be drawn to and from low-tide elevations,
commercial purposes are immune from the coastal unless lighthouses or similar installations are
State’s jurisdiction. permanently above sea level have been built on
 However, Article 23 of the LOSC requires a nuclear there or where a low-tide elevation is situated
ship or ships carrying nuclear or inherently wholly or partly at a distance not exceeding the
dangerous or noxious substances to carry breadth of the territorial sea from the nearest
documents and observe precautionary measures. island;
 What is the petition?  Not be applied in such manner as to cut off from
➔ Submarines and other underwater vessels shall navigate the high seas or the exclusive economic zone the
above water and show the flags of their home States. territorial sea of another State;
 However, if a warship fails to follow the laws and  If a part lies between two parts of an immediately
regulations, it may be asked to leave the territorial adjacent neighboring State, existing rights and all
sea immediately or denied further passage. other legitimate interests which the latter State has
➔ The flag State shall bear international responsibility and traditionally exercised and all rights stipulated shall
liability for loss or damage to the coastal State for such continue to be respected;
non-compliance or for non-compliance with the  For the purpose of computing the ratio of water to
provisions of LOSC or other regulations of international land, land areas may include waters lying within the
law. fringing reefs of islands and atolls, including that
part of a steep-sided oceanic plateau enclosed or
THE ARCHIPELAGIC STATE nearly enclosed by a chain of limestone islands and
Archipelagic State3 - A State constituted wholly by one or drying reefs on its perimeter;
more archipelagos and may include other islands.  Shall be shown on charts of a scale or scales
 May draw straight archipelagic baselines, provided adequate for ascertaining their position. Lists of
that the main islands are included in which the geographical coordinates specifying geodetic
ratio of the area of the water to the area of land is datum may be substituted;
between 1:1 and 9:1  Shall give due publicity to such charts or list of
➔ The sovereignty encompasses the archipelagic baselines geographical coordinates and shall deposit a copy
regardless of their length and distance. with the Secretary-General of the UN.
➔ Sovereignty extends to the air space over the
BOARDING IN THE HIGH SEAS
archipelagic waters and to its bed and subsoil and all the
resources therein. ➔ A warship may not board a foreign vessel unless there is
reasonable ground for suspecting:
Archipelago – A group of islands, including parts of islands,  The ship is engaged in piracy;
interconnecting waters, other natural features closely inter-  In slave trade;
related that such islands, waters, and other natural features  In authorized broadcasting and the flag State of the
form an intrinsic geographical economic and political entity, warship has jurisdiction;
or which historically have been regarded such.  Is without nationality;
 Though flying a foreign flag or refusing to show its
ARCHIPELAGIC STATE AND ARCHIPELAGIC BASELINES flag, the ship is, in reality, of the same nationality as
An archipelago may draw archipelagic baselines subject to the the warship.
following conditions4: ➔ If a ship is boarded and the suspicion disproven, it shall
 May draw archipelagic baselines joining the be compensated for any loss or damage sustained.
outermost points of the outermost islands and
drying reefs of the archipelago provided that within ARTIFICIAL ISLANDS, INSTALLATIONS, AND STRUCTURES
such are included the main islands and an area ➔ The coastal State shall have the exclusive right5 to
which the ratio of the water to land, including atolls, construct, authorize, and regulate the construction,
is between 1:1 and 9:1; operation, and use of artificial islands, installation, and
 The length of such baselines shall not exceed structures for:
100nm except up to 3% of the total number of  The purpose of protecting its rights, jurisdiction,
baselines enclosing any archipelago may exceed up and duties; and
to a max length of 125nm;
3 Article 46 of the LOSC 5 Article 60 of the LOSC


 The purpose of exploring and exploiting, How to determine if classified as an island? There are 2
conserving and managing the natural resources in standards:
its EEZ. ➔ Objective capacity shall be assessed capable to sustain
➔ The coastal State’s exclusive jurisdiction over the permanent human habitation
structures and artificial islands is recognized by the ➔ Economic activities
LOSC.
➔ The coastal State may also establish safety zones around Up to what extent?
the artificial islands, however: The full maritime zones (TS, CZ, EEZ, CS)
 It must not interfere with navigation of recognized Are rocks entitled to generate maritime zones?
sea lanes; No. Rocks, for high-ride features, cannot sustain human
 They do not possess the legal status of islands; habitation or economic life of their own, and which therefore,
 They cannot generate a territorial sea of their own; pursuant to UNCLOS III, are disqualified from generating an
 They have no effect on the delimitation of the EEZ or Continental Shelf.
territorial sea.
Subic reef, Mischief Reef, Second Thomas Shoal, Reed Bank
Ratio of water to land in treaty? are they submerged?
9:1 (water: land) They belong to the party which has maritime zone over which
they are located.
How do we call waters enclosed by the baselines landward? ➔ Mischief Reef – Low-tide elevation
Archipelagic waters. ➔ Second Thomas Shoal – Low-tide elevation
➔ Spratley Islands – High-tide elevation, capable of
Did the SC agree that our sovereignty was diminished because sustaining human habitation or an economic life of their
our internal waters became archipelagic waters? own
No. It is the same because we allow the right of innocent
passage regardless of the name in compliance with our Does the non-participation of one of the parties deprive the
obligation under international law. (Doctrine of Incorporation) tribunal jurisdiction?
No. If one of the parties do not appear before the arbitral
Doctrine of Incorporation tribunal or fails to defend the case, the other party may
The moment a State enters into a treaty and such is ratified, request the tribunal to continue the proceedings and to make
the provisions automatically become part of the law of the its award. Absence or failure shall not constitute a bar to the
land. proceedings.
Under UNCLOS III, arbitration is MANDATORY What are the limitations of the Arbitral Tribunal? (Permanent
Despite non-participation, China submitted unofficial position Court of Arbitration)
papers just to establish their basis of the claim. What was their ➔ It does not include territorial sovereignty
basis over almost all of South China Sea? What was their basis ➔ Its extent only encompasses maritime zones
of the historic right or title? They are invoking the 9-dash line.
What is the delimitation controversy all about?
What is the “first belt of water”?
➔ It pertains to overlapping boundaries
UNCLOS replaces the older 'freedom of the seas' concept,
➔ This is outside the jurisdiction of the Arbitration Tribunal
dating from the 17th century: national rights were limited to
a specified belt of water extending from a nation's coastlines,
Insofar as China is concerned, it determined the following to
usually 3 nautical miles (5.6 km) (three-mile limit), according
know if it has jurisdiction:
to the 'cannon shot' rule developed by the Dutch jurist
➔ Does the issue involve determination of territorial
Cornelius van Bynkershoek. All waters beyond national
sovereignty? NO
boundaries were considered international waters: free to all
nations, but belonging to none of them. ➔ How about the delimitation controversy? NO. The basis
of China was not because it overlaps with others.
Under UNCLOS III, there are 2 kinds of features: ➔ How about the historic title? NO. According to the PCA,
➔ Above sea level during high tides: sovereign rights over historic bays or mere shore water.
 Islands
So, the basis of China of the nine-dash line is obscure?
 Rocks
History shows that these are the coordinates of the route of
➔ Submerged kapag high tide
the Chinese Navy during World War II. China have deemed
waived these when they entered UNCLOS III.
10

Republic of the Philippines vs. People’s Republic of China ➔ Tribunal was properly constituted in accordance with
PCA Case No. 2013-19 Annex VII on the Convention.
➔ China’s non-appearance does not deprive the tribunal of
The disputed area – The South China Sea lies to the South of jurisdiction.
China, West of the Philippines. The South China Sea is a crucial ➔ Philippines’ act of initiating this arbitration did not
shipping lane, a rich fishing ground, home to a highly constitute abuse of process.
biodiverse coral reef ecosystem, and believed to hold ➔ There is no indispensable third party whose absence
substantial oil and gas resources. The southern portion of the deprives the tribunal of jurisdiction.
South China Sea is also the location of the Spratley Islands, a
constellation of small islands and coral reefs, existing just Other rulings –
above or below water, that comprise the peaks of undersea
➔ On the question of Scarborough Shoal – China has
mountains rising from the deep ocean floor.
unlawfully prevented Filipino fishermen from engaging
in traditional fishing at Scarborough Shoal.
The basis for arbitration – 1982 UNCLOS, which both the
➔ On the occupation and construction on Mischief Reef –
Philippines (May 8, 1984) and China (June 7, 1996) have
China’s occupation and construction violate the
ratified.
provisions of the Convention concerning artificial
islands, installations, and structure. Such constitute
China’s 2006 declaration – China made a declaration in 2006
unlawful acts of attempted appropriation in violation of
to exclude maritime boundary delimitation from its
UNCLOS, especially since Mischief Reef lies within the
acceptance of compulsory dispute settlement. The tribunal
EEZ and continental shelf of the Philippines.
has not been asked to, and does not purport to, delimit any
maritime boundary between the parties or involving any other
State bordering on the South China Sea. History of the nine-dash line
China’s position on the PH arbitration recourse – China has The nine-dash line first appeared on an official Chinese map
consistently rejected the Philippines’ recourse to arbitration in 1948. In that year, the ministry of the interior of the, then,
and adhered to a position of neither accepting nor Republican Government of China, published a map showing
participating in these proceedings. China’s foreign ministry the location of the various islands in the South Sea. A similar
has also highlighted in its statements that it considers non- line had also appeared in privately produced cartography as
participation in the arbitration to be its lawful right under the early as 1933. In this original form, the map featured 11
Convention. dashes. The two dashes in the Gulf of Tonkin were removed in
1953, rendering a nine-dash line, and the line has appeared
Philippines’ initiation consistently in that nine-dash form in official Chinese
The Philippines seeks an award that: cartography since that date. The length and precise placement
➔ Declares that the parties’ respective rights and of individual dashes, however, do not appear to be entirely
obligations must be governed by UNCLOS and that consistent among different official depictions of the line.
China’s claim based on its nine-dash line are inconsistent
with the Convention, and therefore, invalid. In its 2009 Note Verbales, China stated that it has indisputable
sovereignty over the islands in the South China Sea and the
➔ Determine whether the certain maritime features
adjacent waters, and enjoys sovereign rights and jurisdiction
claimed by both China and the Philippines are islands,
over the relevant waters as well as the seabed and subsoil
low tide elevations, or submerged banks, and whether
thereof. The above position is consistently held by the Chinese
they are capable of generating entitlement to maritime
Government, and is widely known by the international
zones greater than 12M.
community.
➔ Enable the PH to exercise and enjoy the rights within and
beyond its EEZ and Continental Shelf that are established
in the Convention.
China’s Response – They rejected PH’s arbitration. :)
PH’s Response – The PH expressly requested that these

proceedings continue. China remains a party to the arbitration
with the ensuing rights and obligations, including that it will
be bound under international law by any decision of the
tribunal.
Award on jurisdiction and admissibility

October 29, 2015 – The tribunal issued its award on
jurisdiction.
11

Bacani vs. NACOCO Public Corporation – Those formed or organized for the
G.R. No. L-9657. November 29, 1956 government of a portion of the State.
Facts: Municipal Corporation – Includes organized cities and towns,

➔ Frederico Alikpala, counsel for NACOCO in the case of and like organizations, with political and legislative powers for
Sycip vs. NACOCO, requested the stenographers for the local, civil government and police regulations of the
copies of the transcript of the notes they have taken inhabitants of the particular district included in the
during the hearing. boundaries of the corporation. It is also the authority of the
government, of the inhabitants of a particular place or district,
➔ The stenographers complied with the request by
and authorizing them in their corporate capacity to exercise
delivering to Alikpala the 714-page transcript, and
subordinate specified powers of legislation and regulation
thereafter, submitted to Alikpala their bills for the
with respect to their local and internal concerns.
payment of the stenographer’s fees.
➔ NACOCO paid P564 to Bacani and P150 to Matoto for
Government Owned or Controlled Corporations (GOCCs) –
the transcript which was P1/page.
Corporations owned or controlled by the Government to
➔ Upon inspecting the books of NACOCO, the Auditor
promote certain aspects of the economic life of our people.
General disallowed the payment of these fees and
They may take on the form of a private enterprise or one
sought the recovery of the amounts paid on the strength
organized with powers and formal characteristics of a private
of a DOJ circular.
corporation under the Corporation Law.
➔ The Auditor General required the stenographers to
reimburse their payment, and expressed that NACOCO, Government of the Republic of the Philippines – Government
being a government entity, was exempt from the entity through which the functions of the government are
payment of fees. exercised as an attribute of sovereignty, and in this are
➔ Thus, an order directed the cashier of the DOJ to deduct included those arms through which political authority is made
P25/day from the salary of Bacani and P10/day for effective whether they be provincial, municipal, or other form
Matoto’s. of local government.
➔ To prevent deduction, the stenographers filed an action
with the CFI on the ground that NACOCO is not a The functions, which are exercised by the government are
government entity, thus, they are in no obligation two-fold:
whatsoever to make a refund. ➔ Constituent functions – Those which constitute the very
➔ Section 16, Rule 130 of the Rules of Court – The bonds of society and are compulsory in nature.
Government of the Philippines is exempt from paying ➔ Ministrant functions – Those that are undertaken only by
the legal fees provided for therein, and among these fees way of advancing the general interests of society, and are
are those which stenographers may charge for the merely optional.
transcript of notes taken by them that may be requested
by any interested person. Does the fact that these corporations perform certain
➔ Section 2 of the Revised Administrative Code – The functions of government make them part of the Government
Government of the Philippine Islands is a term which of the Philippines? NO. This is for the simple reason that they
refers to the corporate governmental entity through do not come under the classification of municipal or public
which the functions of government are exercised corporation.
throughout the Philippine Islands, including, save as the
contrary appears from the context, various arms through In this case, NACOCO, while it was organized with the purpose
which political authority is made effective in said islands, of adjusting the coconut industry to a position independent
whether pertaining to the central Government or to the of trade preferences in the US, and providing facilities for the
provincial or municipal branches or other form of local better curing of copra products and the proper utilization of
government. coconut by-products, however, it was given a corporate power
SEPARATE and DISTINCT from our government, for it was
Issue: W/N NACOCO may be included in the term made subject to the provisions of our Corporation Law in so
“Government of the Republic of the Philippines”. far as its corporate existence and the powers that it may
exercise are concerned. It may sue and may be sued in the
Held: No. same manner as any other private corporations, and in this
sense, it is an entity different from our Government.
Government – That institution or aggregate of institutions by ➔ Municipal Corporations do not include government
which an independent society makes and carries out those entities which are given a corporate personality separate
rules of action which are necessary to enable men to live in a and distinct from the government and which are
social state, or which are imposed upon the people forming governed by the Corporation law. Their powers, duties,
that society by those who possess the power or authority and liabilities have to be determined in the light of that
prescribing them. law and their corporate charters.
12

➔ THEY DO NOT COME WITHIN THE EXEMPTION CLAUSE What are the traditional functions of the government?
PRESCRIBED IN SECTION 16, SECTION 130 ROC ➔ Constituent
➔ Ministrant
It is true that stenographers may only charge P0.30 as fees.
However, NACOCO has agreed and in fact has paid P1.00 per What are the differences between the two?
page for the services rendered by Bacani and Matoto. The Constituent functions of Ministrant functions of the
payment of the fees became contractual and as such is valid the government Government
even if it goes beyond the limit prescribed in the Rules of Those that are undertaken
Court. Constitute the very bonds only by way of advancing
of society and are the general interests of
compulsory in nature. society, and are merely
Doctrine: The mere fact that the Government happens to be a optional.
major stockholder of a corporation does not make it a public Promotes the welfare,
corporation. Exercised by the State as
progress, and prosperity of
attributes of sovereignty.
the people.
What are the principles determining whether or not a
government shall exercise certain of these optional functions What are the exceptions as to the ministrant functions?
are? ➔ Private will not naturally undertake
(1.) That a government should do for the public welfare ➔ Better equipped to administer
those things which private capital would not naturally
undertake; and What are the 8 constituent functions? What are the 5
(2.) That a government should do these things which by its important ministrant functions?
very nature it is better equipped to administer for the Constituent functions of the Ministrant functions of the
public welfare than is any private individual or group or Government Government
individuals. The keeping of order and
providing for the protection
of persons and property
What is a “Government”?
from violence and robbery.
That institution or aggregate of institutions by which an Public works
The fixing of the legal
independent society makes and carries out those rules of relations between man and
action which are necessary to enable men to live in a social wife and between parents
state, or which are imposed upon the people forming that and children.
society by those who possess the power or authority The regulation of the
prescribing them. holding, transmission, and
interchange of property,
Public education
and the determination of its
Is government same as administration? liabilities for debt or for
No. It is the administration that runs the affairs of the crime.
government for a given period of time, after which another The determination of
administration may be called upon by the people to serve contract rights between
them. That is why we say that administration changes but the individuals.
government does not. The definition and Public charity
punishment of crime.
The administration of
Government Administration justice in civil cases.
Permanent Temporary The determination of the
Administration is composed Health and safety
The agency which political duties, privileges,
of group of persons in regulations
formulates, expresses and and relations of citizens.
whose hands the reins of Dealings of the State with
realizes the will of the
government are for the foreign powers: the
people.
time being. preservation of the State
Regulations of trade and
from external danger or
Did the SC consider GOCCs even if they are performing industry
encroachment and the
sovereign functions? advancement of its
No. The mere fact that the Government happens to be a major international interests.
stockholder of a corporation does not make it a public
corporation. Are the traditional functions still applicable under the 1935
Constitution and other succeeding constitutions?
The term “government” is limited to what institutions? No. According to PVTA vs. CIR, the growing complexities of
Public or municipal corps. Hence, regardless of the functions, modern society, however, have rendered this traditional
these GOCCs exercise, they are not within the purview of Sec. classification of the functions of the government quite
2, RAC. unrealistic, not to say, obsolete.
13

Philippine Virginia Tobacco Adm. vs. CIR It can hardly be surmised that one of its chief problems
G.R. No. L-32052. July 25, 1975 is paucity of personnel.
Facts: Secondly, it is an inherent state function which makes the

government required to support its people and promote their
➔ Herein private respondents filed a petition with the Court
general welfare. This case explains and portrays the expanded
of Industrial Relations (CIR) alleging their employment
role of government necessitated by the increased
relationship, overtime services in excess of the regular
responsibility to provide for the general welfare.
eight hours a day rendered by them, and the failure to
pay them overtime compensation in accordance with ➔ The Court held that the distinction between constituent
Commonwealth Act No. 444. and ministrant functions, which the Chief Justice points
out, is already irrelevant considering the needs of the
➔ Their prayer was for the differential between the amount
present time. He says that "The growing complexities of
actually paid to them and the amount allegedly due
modern society have rendered this traditional
them.
classification of the functions of government obsolete."
➔ Philippine Virginia Tobacco Administration (PVTA)
The distinction between constituent and ministrant
denied the allegations and raised the special defenses of
functions is now considered obsolete.
lack of a cause of action and lack of jurisdiction, as it
claims to exercise governmental functions; thus,
REASON BEHIND WHY TRADITIONAL FUNCTIONS OF THE
exempting them from the operation of Commonwealth
GOVERNMENT IS NOW CONSIDERED OBSOLETE:
Act No. 444.
The growing complexities of modern society, however, have
➔ Commonwealth Act No. 444 or The Eight Hour Labor Law
rendered this traditional classification of the functions of
applies to:
government quite unrealistic, not to say obsolete. The areas
 Section 1. The legal working day for any which used to be left to private enterprise and initiative and
person employed by another shall be of not which the government was called upon to enter optionally,
more than eight hours daily. When the work is and only 'because it was better equipped to administer for the
not continuous, the time during which the public welfare than is any private individual or group of
laborer is not working and can leave his individuals,' continue to lose their well-defined boundaries
working place and can rest completely shall and to be absorbed within activities that the government must
not be counted. undertake in its sovereign capacity if it is to meet the
 Section 2. This Act shall apply to all persons increasing social challenges of the times. Here as almost
employed in any industry or occupation, everywhere else the tendency is undoubtedly towards a
whether public or private, with the exception greater socialization of economic forces.
of farm laborers, laborers who prefer to be
paid on piece work basis, domestic servants ➔ In Bacani v. National Coconut Corporation, based on the
and persons in the personal service of another
Wilsonian classification of the task’s incumbent on
and members of the family of the employer
government into constituent and ministrant in
working for him.
accordance with the laissez faire principle.
➔ In Rubi v. Provincial Board, could affirm: "The doctrines
Issue: W/N PVTA discharges governmental functions; thus,
of laissez faire and of unrestricted freedom of the
exempting them from CA No. 444.
individual, as axioms of economic and political theory,
are of the past. The modern period has shown a
Held:
widespread belief in the amplest possible demonstration
of government activity." The 1935 Constitution, as was
Firstly, PVTA is not exempt from CA No. 444
indicated earlier, continued that approach.
BASIS: LAW
➔ In Edu v. Ericta: "What is more, to erase any doubts, the
➔ Section 2 of the Act, leaves no doubt that "it shall apply
Constitutional Convention saw to it that the concept of
to all persons employed in any industry or occupation,
laissez-faire was rejected. It entrusted to our government
whether public or private." Nor are private respondents
the responsibility of coping with social and economic
included among the employees who are thereby barred
problems with the commensurate power of control over
from enjoying the statutory benefits.
economic affairs.
➔ A reference to the pertinent sections of both Republic
➔ In Calalang v. Williams for the humanization of laws and
Acts 2265 and 2155 on which it relies to obtain a ruling
the promotion of the interest of all component elements
as to its governmental character should render clear the
of society so that man's innate aspirations, in what was
differentiation that exists. If as a result of the appealed
so felicitously termed by the First Lady as "a
order, financial burden would have to be borne by
compassionate society" be attained.
petitioner, it has only itself to blame. It need not have
required private respondents to render overtime service.
14

Doctrine: THE PROMOTION OF GENERAL WELFARE IS A Held: Yes. In the instant case the Philippine Government is not
GOVERNMENT FUNCTION, REPUDIATION OF THE CONCEPT a mere nominal party because it, in bringing and prosecuting
OF LAISSEZ FAIRE. The growing complexities of modern this action, is exercising its sovereign functions or powers and
society, however, have rendered this traditional classification is seeking to carry out a trust devolved upon it when the
of the functions of government quite unrealistic, not to say Philippine Islands were ceded to the United States.
obsolete. Rejection of the laissez faire doctrine is one way by
which "the harsh contrast obtained between the levels of the Thus, the Philippine government is competent to institute
rich and the poor" may be minimized. action against Monte de Piedad, this is in accordance with the
doctrine of parens patriae. The government being the
What is laissez faire? protector of the rights of the people has the inherent supreme
It is an economic system in which transactions between power to enforce such laws that will promote the public
private parties are absent of any form of economic interest. No other party has been entrusted with such right
interventionism such as regulation and subsidies. It rests on hence as “parents” of the people the government has the right
the axioms that the individual is the basic unit in society and to take back the money intended for the people.
has a natural right to freedom; that the physical order of
nature is a harmonious and self-regulating system; and that In Fontain vs. Ravenel: "When this country achieved its
corporations are creatures of the state and therefore the independence, the prerogatives of the crown devolved upon
citizens must watch them closely due to their propensity to the people of the States. And this power still remains with
disrupt the Smithian spontaneous order. them except so far as they have delegated a portion of it to
the Federal Government. The sovereign will be made known
to us by legislative enactment. The State as a sovereign, is the
Government of the Philippines vs. Monte de Piedad
parens partiae."
G.R. No. 9959. December 13, 1916
Chancellor Kent says: "In this country, the legislature or

Facts:
government of the State, as parens partiae, has the right to
➔ In 1863, the Spanish Dominions contributed $400,000 for enforce all charities of a public nature, by virtue of its general
the damages caused by an earthquake. superintending authority over the public interests, where no
➔ The King of Spain, subsequently, created a Central Relief other person is entrusted with it.
Board (CRB), whose main task is to distribute the money
which was voluntary contributed to the Philippines. Therefore, these principles being based "upon the foundation
➔ Part of the funds contributed were turned over to the of the great principle of public policy" are, in the very nature
Central Relief Board, while some of the funds were of things, applicable to the Philippine Government.
deposited to Monte de Piedad Bank, to be held at the
disposal of CRB. Doctrine: Parens partiae as a prerogative is inherent in the
➔ Out of the $400,000 that was donated to the Republic of supreme power of every State, whether that power is lodged
the Philippine Islands, $80,000 was allotted for the in a royal person or in the legislature, and has no affinity to
victims of such tragedy. those arbitrary powers which are sometimes exerted by
➔ The $80,000 was then invested in the Monte de Piedad, irresponsible of their liberties. On the contrary, it is a most
which the amount was subsequently exhausted in loans beneficent function, and often necessary to be exercised in
on jewelry, and there only remains the sum of P1,000 and the interest of humanity, and for the prevention of injury to
odd. those who cannot protect themselves.
➔ Act No. 2109 was passed by the Philippine Legislature,
empowering and directing the Treasurer of the In Cabanas vs. Pilapil, does the State have authority to give
Philippine Islands to bring a recovery suit against Monte insurance proceeds to the mother?
de Piedad. Here, the Attorney General shall represent the If it is for the best interest of the child.
Government.
➔ However, when the Philippine Government tried to Cabanas vs. Pilapil
withdraw the $80,000, the bank could no longer provide Does the State have the authority to interfere with the terms
for the amount. of the insurance policy by virtue of parens patriae? Yes. The
➔ Thus, the Government then filed a complaint against appealed decision adheres to the concept that the judiciary,
Monte de Piedad Bank. However, the latter argued that as an agent of the State, acts as parens patriae. As such, the
the Philippine Government is not an affected party being judiciary cannot remain insensible to the validity of the
not the intended beneficiary; hence, it has no right to petitioner’s plea. “The State shall strengthen the family as a
institute the complaint. basic social institution”. The Constitution, moreover, dictates
that it is the family as a unit that has to be strengthened. As
Issue: W/N the Philippine Government can file a complaint such, the decision of the lower courts, entitling the mother as
against Monte De Piedad Bank. the trustee, is affirmed.
15

Aside from traditional functions, what is the function of Parens (4.) W/N Courts could continue hearing the cases pending
Patriae? before them.
Parens patriae is Latin for “parent of his or her country.” In the
legal system, parens patriae is a doctrine that allows the state Held:
to step in and serve as a guardian for children, the mentally (1.) YES. Municipal Laws continue, unless suspended or
ill, the incompetent, the elderly, or disabled persons who are superseded by the occupying belligerent.
unable to care for themselves. According to the Hague Convention, belligerent occupants
have the duty to continue the courts as well as the municipal
What does “Parens Patriae” mean? laws in force in the country unless absolutely prevented, in
Literally, parent of the people. As such, the government may order to reestablish and insure pordre et all vie publice, that
act as guardian of the rights of the people who may be is, the public order and safety, and the entire social and
disadvantaged or suffering from some disability or commercial life of the country, were inserted, not for the
misfortune. benefit of the invader, but for the protection and benefit of
the people or inhabitants of the occupied territory and of
Who should the government protect when it acts as “Parens those not in the military service, in order that the ordinary
Patriae”? pursuits and businesses of society may not be unnecessarily
Imbecile, children, those who cannot protect themselves. deranged.
Co Kim Cham vs. Valdez Tan Keh Further, in the case of Dow vs Johnson it was stated, "As a
G.R. No. L-5a. November 16, 1945 necessary consequence of such occupation and domination,
the political relations of its people to their former government
Facts: are, for the time being, severed. But for their protection and
benefit, and the protection and benefit of others not in the
➔ Co Kim Chan had a pending civil case, initiated during
ordinary pursuits and business of society may not be
the Japanese occupation, with the Court of First Instance
unnecessarily deranged, the municipal laws, that is, such as
of Manila.
affect private rights of persons and property and provide for
➔ After the Liberation of Manila and the American
the punishment of crime, are generally allowed to continue in
occupation, Judge Arsenio Dizon refused to continue
force, and to be administered by the ordinary tribunals as they
hearings.
were administered before the occupation. They are
➔ Saying that a proclamation issued by General Douglas considered as continuing, unless suspended or superseded by
MacArthur had invalidated and nullified all judicial the occupying belligerent."
proceedings and judgments of the courts of the
Philippines and, without an enabling law, lower courts
(2.) YES. Judicial proceedings and decisions should be
have no jurisdiction to take cognizance of and continue
respected.
judicial proceedings pending in the courts of the defunct
An explanation can be gleaned from the statement of
Republic of the Philippines (the Philippine government
Wheaton: When it is said that an occupier's acts are valid, it
under the Japanese).
must be remembered that no crucial instances exist to show
➔ Aside from a motion for reconsideration filed by the that if his acts should all be reversed (by the restored
respondent, two attorneys at law, who were allowed to government or its representatives) no international wrong
appear as amici curiae, have also presented memoranda would be committed. It evidently does not mean that the
to discuss certain points on which the dissenting opinion restored government or its representatives may reverse the
rely. judicial acts and proceedings of the courts during the
➔ The lawyers, contended that the military occupation of belligerent occupation without violation of the law of nations
the Philippine Islands by the Japanese was not actual and does not always and necessarily cause an international
effective because of the existence of guerrilla bands in wrong.
barrios and mountains and even towns and villages; and
consequently, no government de facto could have been Judicial acts which apply the municipal laws, affect private
validly established by the Japanese military forces in the rights or persons and property and provide for the
Philippines under the precepts of the Hague punishment of crimes, are good and valid even after
Conventions and the law of nations. occupation has ceased. Although it is true that no crucial
instances exist to show, it is nonetheless true and evident that
Issues: by such abrogation national wrong would be caused to the
(1.) W/N the Municipal Laws continue in force? inhabitants or citizens of the legitimate government.
(2.) W/N judicial proceedings and decisions made during the
Japanese occupation were valid and remained valid even
after the American occupation.
(3.) W/N the proclamation of MacArthur invalidated all
judgments and judicial acts and proceedings of the
courts.
16

(3.) NO. The proclamation of General MacArthur did not order that the ordinary pursuits and business of society may
invalidate the judicial acts and proceedings of our not be unnecessarily deranged.
Courts.
The "processes," as used in the proclamation of General What does “processes” mean?
Douglas MacArthur of October 23, 1944, cannot be In ordinary parlance – “Act of proceeding; procedure;
interpreted to mean judicial processes. The term as used in progress; something that occurs in a series of action or events;
the proclamation should be construed to mean legislative and any phenomenon which shows a continuous change in time.”
constitutional processes, not judicial processes, by virtue of In court language – It means the compulsion of courts for a
the maxim "noscitur a sociis." According to this maxim, where defendant to appear before it, or a compliance of its demands.
a particular word or phrase is ambiguous in itself or is equally In this case (as per Gen. MacArthur) – “Processes” cannot be
susceptible of various meaning, its meaning may be made interpreted to mean judicial processes. The term as used in
clear and specific by considering the company in which it is the proclamation should be construed to mean legislative and
found. constitutional processes, not judicial processes, by virtue of
the maxim "noscitur a sociis." According to this maxim, where
REASON WHY JUDICIAL ACTS WILL SUBSIST EVEN DURING a particular word or phrase is ambiguous in itself or is equally
RESTORED GOVERNMENT susceptible of various meaning, its meaning may be made
The reason being that there are vested rights which have been clear and specific by considering the company in which it is
acquired by the parties by virtue of such judgments, the found. Thus, the word "processes" must be interpreted or
restored government or its representative cannot reverse or construed to refer to the:
abrogate them without causing wrong or injury to the ➔ Executive Commission
interested parties, because such reversal would deprive them
➔ Ordinances promulgated by the President of the so-
of their properties without due process of law. called Republic of the Philippines
➔ The Constitution itself of said Republic
Since the proclamation provides that "all laws, regulations and
➔ Others that are of the same class as the laws and
processes of any other government in the Philippines than
regulations with which the world "processes" is
that of the said Commonwealth are null and void." Thus, the
associated.
word "processes" must be interpreted or construed to refer to
the:
What was the proclamation of General McArthur?
➔ Executive Commission
In the very proclamation, Gen. MacArthur promised to restore
➔ Ordinances promulgated by the President of the so- to the people “the sacred right of Government by
called Republic of the Philippines constitutional processes.” And that “All laws, regulations, and
➔ The Constitution itself of said Republic processes of any other government in the Philippines than
➔ Others that are of the same class as the laws and that of the said Commonwealth are null and void.” Therefore,
regulations with which the world "processes" is the word “processes” referred to orders or instructions,
associated. establishing governmental changes or practices-directives
that may not fall strictly within the category of laws and
(4.) YES. Philippine laws remain valid; thus, the court must regulations.
continue hearing the case pending before it.
The reason for this is to deny validity to such judicial acts Note: Upon military occupation, the legislative, executive, or
would benefit the invader or aggressor, who is presumed to administrative functions of the enemy Government are
be intent in causing as much harm as possible to the affected; however, not the judiciary.
inhabitants or nationals of the enemy’s territory, and prejudice
the latter; it would cause more suffering to the conquered and What did the SC say on the contention of the judge that
assist the conqueror or invader in realizing his nefarious functions of the court already ceased?
design. In fine, it would result in penalizing the nationals of Judicial acts which apply the municipal laws, that is, such as
the occupied territory, and rewarding the invader or occupant affect private rights or persons and property and provide for
for his acts of treachery and aggression. the punishment of crimes, are good and valid even after
occupation has ceased, although it is true that no crucial
Doctrine: In line with the Hague Convention, it is a duty of instances exist to show that, were they reversed or invalidated
belligerent occupant to continue courts and municipal laws in by the restored or legitimate government, international
force, for the benefit of inhabitants of occupied, unless wrong would be committed, it is nonetheless true and evident
absolutely prevented, in order to reestablish and insure: that by such abrogation national wrong would be caused to
Pordre et al vie publice,". That is, the public order and safety, the inhabitants or citizens of the legitimate government.
and the entire social and commercial life of the country, were
inserted, not for the benefit of the invader, but for the What are the 3 kinds of de facto government?
protection and benefit of the people or inhabitants of the ➔ Established through rebellion – The government gets
occupied territory and of those not in the military service, in possession and control through force or the voice of the
17

majority and maintains itself against the will of the exception, if it is in order to reestablish or insure public order
rightful government. and safety for the benefit of the people and not the invader,
➔ Established through occupation – It is established and municipal laws may be abrogated.
maintained by military forces who invade and occupy a
territory of the enemy in the course of war; denoted as a What is the difference between de facto and de jure?
government of paramount force. De Facto Government De Jure Government
➔ Established through insurrection – It is established as an Has a rightful title but no
Actually, exercises power power or control, either
independent government by the inhabitants of a country
of control but without the because the same has
who rise in insurrection against the parent state. legal title. It is one been withdrawn from it or
established in defiance of because it has not yet
What are the essential features of Belligerent Government? the legitimate sovereign. actually entered into the
➔ Belligerent or so-called military occupation is a question existence thereof.
of fact.
➔ It presupposes a hostile invasion as a result of which has Can a de facto government exist without a de jure
rendered the invaded government incapable of publicly government?
exercising its authority, and that the invader is in position No. A de facto government can only exist if there is a
to substitute and has substituted his own authority for government with legal right so they may be able to “usurp” it.
that of the legitimate government of the territory
Can de jure exist without de facto government?
invaded.
Yes. When they are deprived of control and when it has not
➔ Belligerent occupation must be both actual and
yet entered.
effective. Organized resistance must be overcome and
the forces in possession must have taken measures to
Doctrine of Jus Postliminium
establish law and order. Occupation once acquired must
Personal power of the State over its nationals, which may be
be maintained. It does not cease, however, nor does the
exercised by the state even if the individual is outside the
existence of a rebellion or the operations of guerrilla
territory of the State.
bands cause it to cease, unless the legitimate
government is reestablished.
People vs. Gozo
What is the substantive basis why decisions or judicial G.R. No. L-36409. October 26, 1973
proceedings still continue?
According to the law of nations and Wheaton himself, judicial Facts:
acts are legal and valid before and after the occupation has ➔ Loreta Gozo bought a house and lot located inside the
ceased and the legitimate government has been restored. As United States Naval Reservation, which was within the
there are vested rights which have been acquired by the territorial jurisdiction of Olongapo City.
parties by virtue of such judgments, the restored government ➔ She demolished the house and built another one in its
or its representative cannot reverse or abrogate them without place without a building permit from the City Mayor.
causing wrong or injury to the interested parties, because ➔ She alleged that she was informed by Ernesto Evalle, an
such reversal would deprive them of their properties without assistant in the City Mayor’s office, and her neighbors
due process of law. that a building permit was not necessary for the
construction of a house.
Effects of Belligerent Occupation on the laws of occupied ➔ On December 26, 1966, Juan Malones, building and lot
territory? inspector of Olongapo, together with the Olongapo
➔ The exercise of sovereignty shall be suspended. The Police apprehended 4 carpenters working in the house
rightful legal government has no control over the of Loreta and brought them to the HQ for interrogation.
government and therefore it cannot enforce its political ➔ Thus, Loreta was charged with violation of Municipal
laws. Ordinance No. 14, series of 1964, and was sentenced to
➔ The political laws of the occupied territory are a 1-month imprisonment.
suspended subject to revival under the Doctrine of Jus ➔ On appeal, the CFI of Zambales, affirmed her violation
Postliminium. Thus, the members of the rightful legal but lowered her sentence—merely to pay a fine of Php
government are still bound to obey the political laws of 200 and to demolish the house.
the rightful legal government. ➔ Loreta elevated the appeal to the CA and questioned the
➔ The articles of war, which is a political law, shall continue constitutionality of the Municipal Ordinance, and the
to be effective even during belligerent occupation. applicability of the latter in view of the location of her
dwelling, which was within a US Naval Base.
Can Belligerent government abrogate municipal laws?
Generally, no. According to the Hague Convention, courts and Issue: W/N the municipal ordinance is enforceable within the
Municipal laws continue to be in force. However, as an US Naval Base.
18

Held: Yes. The Philippine Government has not abdicated its to state any policy, or to of jurisdiction over
sovereignty over the bases as part of the Philippine territory set up any standard to offenses committed
or divested itself completely of jurisdiction over offenses guide or limit the mayor’s therein. The Philippine
committed therein. Under the terms of the treaty, the United action. The standards of Government retains not
the ordinance are entirely only jurisdictional rights
States Government has prior or preferential but not exclusive
lacking making it not granted, but also all
jurisdiction of such offenses. The Philippine Government unreasonable and such ceded rights as the
retains not only jurisdictional rights not granted, but also all oppressive, hence, not a United States Military
such ceded rights as the United States Military authorities for valid ordinance. While authorities for reasons of
reasons of their own decline to make use of (Military Bases property may be regulated their own decline to make
Agreement). Further, any residual authority and therein to the interest of the use of (Military Bases
general welfare, and the Agreement). Any residual
conferred, whether expressly or impliedly, belongs to the
state may eliminate authority and therein
national government and not the alien country. What is more structures offensive to the conferred, whether
to be deplored in this stand of Loreta is that no such claim is sight, the state may not expressly or impliedly,
made by the American Naval authorities, not that it would do permanently divest owners belongs to the national
them any good if it were asserted. Hence, in the exercise of its of the beneficial use of government and not the
sovereignty, the State through the City of Olongapo does their property and alien country.
have administrative jurisdiction over the lot located within the practically confiscate them
solely to preserve or assure
US Naval Base.
the aesthetic appearance of
the community.
Justice Tuason – As a matter of comity, courtesy, and
expediency becomes one of obeisance and submission. If on How did the SC rule on the contention of Gozo that the PH
a concern purely domestic in its implications, devoid any has no jurisdiction?
connection with national security, the Military-Bases PH retains jurisdiction for acts not included in the grant and
Agreement could be thus interpreted, then sovereignty those included but US does not want to exercise.
indeed becomes a mockery and an illusion.
Why do ordinances still apply in that area within the base?
Reagan vs. Commissioner of Internal Revenue on the issue of ➔ The Philippine Government has not abdicated its
jurisdiction of the Philippines sovereignty over the bases as part of the Philippine
Any State may, by its consent, express or implied, submit to a territory or divested itself completely of jurisdiction over
restriction of its sovereign rights. There may thus be a offenses committed therein. Under the terms of the
curtailment of what otherwise is a power plenary in character. treaty, the United States Government has prior or
That is the concept of sovereignty as auto-limitation, which is preferential but not exclusive jurisdiction of such
the property of a state-force due to which it has the exclusive offenses.
capacity of legal self-determination and self-restriction. A
➔ The Philippines being independent and sovereign, its
State the, if it chooses to, may refrain from the exercise of
authority may be exercised over its entire domain. There
what is otherwise is illimitable competence. It is not precluded
is no portion thereof that is beyond its power. Within its
from allowing another power to participate in the exercise of
limits, its decrees are supreme, its commands
jurisdictional right over certain portions of its territory. If it
paramount. Its laws govern therein, and everyone to
does so, it by no means follows that such areas become
whom it applies must submit to its terms. That is the
impressed with an alien character. They retain their status as
extent of its jurisdiction, both territorial and personal.
native soil. They are still subject to authority. Its jurisdiction
Necessarily, likewise, it has to be exclusive. If it were not
may be diminished, but it does not disappear. So, it is with the
thus, there is a diminution of its sovereignty
bases under lease to the American Armed Forces by virtue of
the Military-Bases Agreement of 1947. They are not and
Doctrine of Auto Limitation
cannot be foreign territory.
It is to be admitted that any state may, by its consent, express
or implied, submit to a restriction of its sovereign rights.
Note: The carrying out of the provisions of the Bases
Agreement is the concern of the contracting parties alone.
Note: The Philippines adheres to the principles of
international law as a limitation to the exercise of sovereignty.
Doctrine: Sovereignty is comprehensive, but its exercise may Sovereignty may be considered as a proper right of the state.
be restricted. As a property right of the state, the state can enter into a
contract with another state whereby it agrees to share or
People vs. Fajardo People vs. Gozo restrict the exercise of sovereignty.
The ordinance doesn’t The Philippine
state any standard that Government has not Imperium – The State’s authority to govern as embraced in the
limits the grant of power to abdicated its sovereignty
concept of sovereignty.
the mayor. It is an arbitrary over the bases as part of
and unlimited conferment. the Philippine territory or
The subject ordinance fails divested itself completely
19

Dominium – The capacity of the State to own or acquire As treason is basically a war crime, it is punished by the
property. State as a measure of self-defense and self-preservation.
The law of treason is an emergency measure. It remains
Embassies are extensions of the sending State. Do we apply dormant until the emergency arises. But as soon as war
this in political law? starts, it is relentlessly put into effect.
No. Any part of the PH soil cannot be impregnated by foreign
character. Notes:
• Sovereignty remains vested in the legitimate
Laurel vs. Misa government and is not transferred to the occupier; it
G.R. No. L-409. January 30, 1947 cannot be suspended without putting it out of existence
or divesting said government thereof.
Facts: • All the powers of a de facto government may either
➔ Anastacio Laurel filed a petition for habeas corpus. change the existing laws or make new ones when the
exigencies of the military service demand such action,
➔ Laurel contends that he cannot be prosecuted for the
that is, when it is necessary for the occupier to do so for
crime of treason defined and penalized by the Article 114
the control of the country and the protection of his army,
of the Revised Penal Code on the grounds that the
subject to the restrictions or limitations imposed by the
sovereignty of the legitimate government and the
Hague Regulations, the usages established by civilized
allegiance of Filipino citizens was then suspended, and
nations, the laws of humanity and the requirements of
that there was a change of sovereignty over the
public conscience.
Philippines upon the proclamation of the Philippine
Republic. • The idea of suspended sovereignty or suspended
allegiance is incompatible with our Constitution. That
Issue: sovereignty, following our constitutional philosophy, has
(1.) W/N Laurel is subject to Article 114 of the RPC? existed ever since our people began to exist. It has been
(2.) W/N the absolute allegiance of the Philippines is recognized by the US. By such act, President Roosevelt
suspended during the Japanese Era. accepted and recognized the principle that Philippine
sovereignty resides in the Filipino people.
Held:
(1.) Yes. Article 114 of the RPC was applicable to treason Doctrine: Law on treason, though political in nature, is not
committed against the national security of the legitimate suspended during belligerent occupation.
government, because the inhabitants of the occupied
territory were still bound by their allegiance to the latter Allegiance – The obligation for fidelity and obedience which
during the enemy occupation. The change of form of the individual owes to his government or his sovereign in
government does not affect the prosecution of those return for the protection which he receives.
charged with treason as the offense is still committed to
the same Government and to the same sovereign Four kinds of allegiance
people. ➔ Natural allegiance – That which arises by nature and
birth.
(2.) No. There is no such thing as suspended allegiance. A ➔ Acquired allegiance – That arising through circumstance
citizen or subject owes, not a qualified a temporary, but or act other than birth, namely, by denotation or
an absolute and permanent allegiance, which consists in naturalization.
the obligation of fidelity and obedience to his ➔ Local allegiance – That arising from residence simply
government or sovereign. The absolute and permanent within the country, for however short a time.
allegiance of the inhabitants of a territory occupied by
➔ Legal allegiance – That arising from oath, taken usually
the enemy to their legitimate government or sovereign
at the town or reed, for, by the common law, the oath of
is not abrogated or severed by the enemy occupation
allegiance might be tendered to every one upon
because the sovereignty of the government or sovereign
attaining the age of twelve years old.
de jure is not transferred to the occupier.
Political Laws – Prescribe the reciprocal rights, duties and
Further Justice Perfecto, in his concurring opinion, stated
obligations of government and citizens, are suspended or in
that treason is a war crime. It is not an all-time offense.
abeyance during military occupation.
It cannot be committed in peace time. While there is
peace, there are no traitors. Treason may be incubated
Municipal Laws – Municipal law governs the domestic aspects
when peace reigns. Treasonable acts may actually be
of government and deals with issues between individuals, and
perpetrated during peace, but there are no traitors until
between individuals and the administrative apparatus.
war has started.
20

What happens to these laws in case of belligerent occupation? own freedom and independence and repressing the exercise
Laws of political nature or affecting political relations are by them of their own sovereignty. It would also allow invaders
considered superseded or in abeyance during the military to legally recruit or enlist the inhabitants of the occupied
occupation, is intended for the governing of the civil territory to fight against their own government without the
inhabitants of the occupied territory. It is not intended for and latter incurring the risk of being prosecuted for treason, and
does not bind the enemies in arms. even compel those who are not to aid them in their military
operation against the resisting enemy forces in order to
Political laws deemed suspended during belligerent completely subdue and conquer the whole nation, and thus
occupation because? deprive them all of their own independence or sovereignty.
Political laws which prescribe the reciprocal rights, duties, and
obligations of government and citizens, are suspended or in Ruffy vs. Chief of Staff
abeyance during military occupation for the only reason that G.R. No. L-533. August 20, 1946
they exclusively bear relation to the ousted legitimate
government, they are inoperative or not applicable to the Facts:
government established by the occupant.
➔ On December 8, 1941, Ramon Ruffy was the Provincial
Commander, Prudente M. Francisco, a junior officer, and
What is sovereignty?
Andres Fortus, a corporal, all of the Philippine
Power granted to the State to govern its affairs
Constabulary garrison stationed in Mindoro.
➔ On February 27, 1942, the Japanese forces landed in
Characteristics of Sovereignty?
Mindoro, Major Ruffy retreated to the mountains instead
➔ Permanent
of surrendering to the enemy, disbanded his company,
➔ Exclusive and organized and led a guerilla known as The Bolo
➔ Comprehensive Combat team.
➔ Absolute ➔ A certain Capt. Esteban Beloncio relieved Ruffy and
➔ Indivisible fellow petitioners of their position and duties.
➔ Inalienable ➔ On October 19, 1944, Lieut. Col. Jurado, who relieved
➔ Imprescriptible Ruffy, was allegedly slain by Ruffy and his fellow
petitioners.
Is sovereignty suspended? Issue: W/N the petitioners were subject to military law at the
Only the exercise is suspended. time the offense was committed, which was at the time of war
and the Japanese occupancy.
Municipal laws continue, why? Held: Yes. The Court held that the petitioners were still subject
Municipal laws remain in force because they regulate the to military law since members of the Armed Forces were still
relations between private individuals in order to preserve covered by the National Defense Act, Articles of War and
public order. other laws even during an occupation. By the occupation of
the Philippines by the Japanese forces, the officers and men
So, rebellion? Suspended? Why? of the Philippine Army did not cease to be fully in service,
Upon a change of sovereignty, the provisions of the Penal though, in a measure, only in a measure, they were not subject
Code having to do with such are no longer in force. to the military jurisdiction, if they were not in active duty. In
this case, like officers and soldiers on leave of absence or held
Treason? as prisoners of war, they could not be held guilty of a breach
Not suspended. of discipline of the command or of a neglect of duty, or
What is the reason why? disobedience of orders, or mutiny, or subject to a military trial
It is not suspended because the Law on Treason remains in therefor; but for an act unbecoming an officer and a
effect. The preservation of allegiance or the obligation of gentleman, or an act which constitutes an offense of the class
fidelity and obedience of a citizen or subject to his specified in the 95th Article of War, they may in general be
government or sovereign does not demand from him a legally held subject to military jurisdiction and trial.
positive action, but only a passive attitude or forbearance
from adhering to the enemy by giving the latter aid and THE CONSTITUTIONALITY OF THE 93rd ARTICLE OF WAR
comfort, the occupant has no power, as corollary of the Court Martials are agencies of executive character, and one of
preceding consideration, to repeal or suspend the operation the authorities for the ordering of Court Martials had been
of the law of treason. held to be attached to the constitutional functions of the
President as the Commander-in-Chief, independently of
Suspension of allegiance would result to political suicide legislation. Unlike Courts of Law, Court Martials are not a
because? portion of the judiciary. Thus, not belonging to the judicial
The theory is that it would sanction the action of invaders in branch of the Government, it follows that Court Martials must
forcing the people of a free and sovereign country to be a pertain to the executive department, making them
party in the nefarious task of depriving themselves of their instrumentalities of the executive power.
21

Doctrine: The suspension of political laws during belligerent continued in force by the affirmative act of the Commander-
occupation does not apply to the enemies in arms. in-chief during the war and the Congress in time of peace. But
the non-political or municipal laws are impliedly continued
Does suspension apply to all citizens? unless they are inconsistent with the constitutional laws and
No. Only to civilians. Members of the Armed Forces of both institutions of the new sovereign. Their continuance is
sides are still bound. equivalent to their reenactment by the Legislature of the new
sovereign, thereby becoming entirely new laws of the latter.
Why is it not applicable to the Armed Forces? What did the
SC say? What happens to sovereignty during the belligerent
Laws of political nature or affecting political relations are occupation?
considered superseded or in abeyance during the military There would be no change in sovereignty. However, political
occupation, is intended for the governing of the civil laws, except those of treason, are merely suspended.
inhabitants of the occupied territory. Municipal laws remain in force, however, unless changed by
the belligerent occupant.
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 What happens to the laws?
of a contrary ruling should readily manifest itself. Under the It depends. If it is a political law, it shall be suspended, except
petitioners' theory the forces of resistance operating in an in cases of the Law of Treason because citizens owe absolute
occupied territory would have to abide by the outlawing of and permanent allegiance to their country. However, if it is a
their own existence. They would be stripped of the very municipal law, it shall not be suspended unless it is changed
lifeblood of an army, the right and the ability to maintain by the belligerent occupant.
order and discipline within the organization and to try the
men guilty of breach thereof. People vs. Perfecto Macariola vs. Asuncion
Political laws of the
belligerent occupants are
What are the two kinds?
automatically abrogated,
Legal sovereignty Political sovereignty unless they are expressly re-
➔ The sum total of all the Spanish Penal Code
enacted by the affirmative
influences in the State act of the new sovereign.
➔ The power to issue
which lie behind the Municipal laws remain in
final commands.
law. force.
➔ The possession of
➔ It is roughly defined as
unlimited power to
the power of the People vs. Peralta?
make laws.
people. Journalist attacks members of the Congress
➔ The authority by
➔ It is the sovereignty of
which a law has the
the electorate, or in its
power to issue final Can these laws continue to apply?
general sense, the
commands. They are political laws; hence they are deemed abrogated.
sovereignty of the
➔ It is conferred upon whole body politic.
Congress
➔ It is conferred upon
the people.
Internal External
➔ Known as
➔ The supreme power independence, which is
over everything freedom from external
within its territory. control.
➔ The power of the ➔ Power of the state to
state to control its direct its relations with
domestic affairs. other states
(independence).
To whom does sovereignty reside?

To the people of the Republic of the Philippines.
What happens when there is change of sovereignty?

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
22


Concept of The State

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Concept of The State

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POLITICAL LAW REVIEW

POLI RECIT Qs / CONCEPT OF THE STATE

POLI RECIT Qs / CONCEPT OF THE STATE

Personality of Morocco How about recognition and degree of civilization?

Is there a legal requirement as to the number of people?

POLI RECIT Qs / CONCEPT OF THE STATE

Laos is land-locked. So, is it a State?

May a territory outside the PH archipelago be considered a

POLI RECIT Qs / CONCEPT OF THE STATE

POLI RECIT Qs / CONCEPT OF THE STATE

What is RA 9552 all about?

What is UNCLOS III all about?

Did the SC agree that RA 9522 results to a loss of territory?

Is there a deadline set by the treaty?

POLI RECIT Qs / CONCEPT OF THE STATE

1 Article 76 of the LOSC

POLI RECIT Qs / CONCEPT OF THE STATE

2 Article 19 of the LOSC

POLI RECIT Qs / CONCEPT OF THE STATE

3 Article 46 of the LOSC 5 Article 60 of the LOSC

POLI RECIT Qs / CONCEPT OF THE STATE

POLI RECIT Qs / CONCEPT OF THE STATE

China’s Response – They rejected PH’s arbitration. :)

PH’s Response – The PH expressly requested that these

Award on jurisdiction and admissibility

POLI RECIT Qs / CONCEPT OF THE STATE

Facts: Municipal Corporation – Includes organized cities and towns,

POLI RECIT Qs / CONCEPT OF THE STATE

POLI RECIT Qs / CONCEPT OF THE STATE

Facts: Secondly, it is an inherent state function which makes the

POLI RECIT Qs / CONCEPT OF THE STATE

Chancellor Kent says: "In this country, the legislature or

POLI RECIT Qs / CONCEPT OF THE STATE

POLI RECIT Qs / CONCEPT OF THE STATE

POLI RECIT Qs / CONCEPT OF THE STATE

POLI RECIT Qs / CONCEPT OF THE STATE

POLI RECIT Qs / CONCEPT OF THE STATE

POLI RECIT Qs / CONCEPT OF THE STATE

POLI RECIT Qs / CONCEPT OF THE STATE

To whom does sovereignty reside?

What happens when there is change of sovereignty?

POLI RECIT Qs / CONCEPT OF THE STATE

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