Kapitan Basa (Isip) Lista 8.
“Government” is = agent = externalized
vast words;
vast phrases;
vast clauses.
1. Self-Executing Provision in
Constitution (versus Non- Self
Executing provision) =
 Right to Information Art. II, sec.
28 Governments Full Public
Disclosure is self-executing
provision) ;
 Filipino First Policy (self-
executing provision)
B. General Considerations
The Concept of State
2. State = Community = Persons
= Numerous (more or less)
= Permanent Occupy Fixed Territory
= Possess Independent Government
= For Political Ends (organized)
= Great Body (Inhabitance)
= render Obedience.
3. Nation
= refers to birth or origin;
= implies a common race.
4. Word “State” = Legal concept
5. Word “Nation” = Racial concept (ethnic)
6. “Word “State” is = principal = abstraction
(ideas)
State = describes as:
- Ideal person
- Invisible person
- Intangible person
- Immutable (unchange) person
- Exist only in contemplate (view)
of Law
7. Criteria for = Establish State (
 Permanent Population
 Defined Territory
 a Government (has capacity to
enter relations with other states)
= give existence
Government = describes as:
- Perfect representative
- but outside Lawless usurpation
- Its mandate is to promote the
welfare of the people
- “Whatever good than by the
government is attributed to the
state but every harm inflict to
the people imputed (to lay
responsibility) therefore to the
government.” (Not to the State)
- Not so Important: Such injury =
justify replacement of
government through revolution
or through direct action of the
State.
9. Function of the Government:
a. Constituent: this function constitute
the very bonds (be friendly) to
society.
- Keeping of order and provide
protection (person or property)
- Fix legal relation (husband and
wife); (parents and children)
- Regulation of Property ( hold,
transmit, interchange,
determination of its liability
either debt or crime)
- Determination of contractual
rights
- Definition and Punishment of
Crimes
- Administration of justice (civil
case)
- Administration of Political duties
(privileges and relations of
citizen)
- Dealing and Advancement of
Foreign Policy Relation
b. Ministrant: Those activity that
undertaken to advance the general
interest of the society;
- Public works
- Public Charity
- Regulation of Trade & Industry
- Not so Important:
Paternalistic Government (which
basically concerned are peace
and order)
 vs.
Individualistic Government
- Not so Important:
Obligatory to the State to do:
= to promote Social Justice
= to provide adequate Social
Service
= to promote rising Standard of
Living
= to afford protection to Labor
= to formulate and implement
13. Administration (government definition
urban & agrarian reform
programs
= adopt measure to ensure the
dignity, welfare and security
(citizen)
= maintain a complete and
adequate integrated system of
education
= promote scientific research
= patronize arts, Filipino culture
14. Elements of State: ( PT – GS)
10. Doctrine of Parens Patriae = Guardian
of the Rights of the People (Philippine
Island vs. Monte de Piedad)
11. De Jure and De facto Government:
- De Jure = has the rightful title
but no power or control
(because it has been
withdrawn), (example: Marcos,
Commonwealth US-PH)
- De Facto = a Government of
fact, that is actually exercising
power or control (but no legal
tile)
Three (3) Kinds of De Facto:
= Government gets possession
(usurp) and control by force;
voice of majority (example:
Cory, Japanese,)
= Independent Government
(establish by inhabitants)
= Military Government (establish
by military force)
12. Government of the Philippines defined:
- The Corporate Governmental
Entity; by which the function of
the government is exercise
through the Philippines;
Including various Arms through
which political authority is made
in the Philippines = whether
Autonomous Regions,
Provinces, Cities, Municipals,
Barangays.
vs. administration definition) = The
group of persons in whose hands the
reigns of the government (for time being
only) = Administration runs the
government while “Government” is =
agent = externalized = give existence
a. People = inhabitants of the State
- no legal requirement as to
number;
- must be numerous enough;
- to self-sufficing to defend
themselves and
- small enough to easily
administer)
b. Territory = fixed portion of the
surface of the Earth, inhabited by
the people of the State
- neither to big to administer and
defend;
- nor too small to unable to
provide the needs of the
population
- Components of Territory:
( T- M- A )
(1) Terrestrial domain =
Landmass
(2) Marital & Fluvial domain =
Inland and External water
(3) Aerial domain = airspace
above land & water.
c. Government = The agency =
Instrumentality = by which = the will
of the State is = Formulated;
Expressed; Realized.
d. Sovereignty = the supreme and
uncontrollable power inherent in the
State (by which the state is
governed)
- Two Kinds of Sovereignty:
Legal (sovereignty) = the
authority which has the power to
issue final command (example:
Congress)
Political (sovereignty) = the
power behind Legal sovereignty
(the sum of the influences)
(example: different sectors mold
public opinion)
Not so Important:
Internal Sovereignty = refers to
the power to control its domestic
affairs
External Sovereignty
(independence) = refers to the
power to direct its relation with
other States
Sovereignty is = permanent,
exclusive, comprehensive,
absolute, indivisible, inalienable,
imprescriptible
No change of Sovereignty
during US vs. Japanese
occupation (only de facto
government lang)
Act of the State: Any act of the
State is an act done by the
sovereign power of a
country/delegate (within the
limits of its vested power)
The act of state cannot be
questioned or be the subject of
legal proceeding in court of law.
The act of the state is the act of
its political departments
(government) and not subject to
judicial review
“not subject to judicial review”
(state;sovereignty;will =
government;instrumentality;
agent = supreme court; judicial
review) = to be confirmed pa
kung tama ???
15. The Act of State Doctrine =
is methods by which
States prevent their national courts from
deciding disputes which relate to
the internal affairs of another State,
the other two being (because)
= immunity and non-justiciability.
STATE IMMUNITY
16. ''there can be no legal right against
the authority which makes the law on
which the right depends.” -
Kawanakoa v. Polybank (Justice
Holmes)
17. Acts jure imperii = are acts of a
sovereign nature and are subjected to
immunity. (the act is pursuit to sovereign
activity) (right of eminent domain)
18. Acts jure gestionis are commercial acts
in respect of which the state is not
immune (but is subject to the jurisdiction
of the territorial sovereign) (it is
undertaken gain or profit)
19. Suing a representative of a state is
believed to be, in effect, suing the state
itself. (Minucher v. CA,)
20. A diplomatic agent shall enjoy immunity
from the criminal jurisdiction of the
 receiving State. (Rep. of Indonesia v.
Vinzon,)
He shall also enjoy immunity from its
civil and administrative jurisdiction,
except in the case of:
(a) a real action relating to private
immovable property situated in the
territory of the receiving State, unless he
holds it on behalf of the sending State
for the purposes of the mission;
(b) an action relating to succession
in which the diplomatic agent is involved
as executor, administrator, heir or
legatee as a private person and not on
behalf of the sending State;
(c) an action relating to any
professional or commercial activity
exercised by the diplomatic agent in the
receiving State outside his official
functions.
21. All states are sovereign equals and
cannot assert jurisdiction over one
another (Rep. of Indonesia v. Vinzon)
22. The Constitution declares = the may not
be sued without its consent
 because recognition of
sovereign character of the
state.
 because impairment of dignity
of state.
 Justice Homes = no legal right
against the authority which
makes the law. (which such
rights depends)
23. The State Immunity = is also available to
foreign State (ENJOY THE
SOVEREIGN IMMUNITY FROM SUIT)
24. Forms of Consent (under Waiver of
Immunity) The consent of the State to
be sued:
 Express waiver = manifested
through General Law or Special
Law = Congress = express
consent must be embodied in
duly enacted statute.
-Example:
Act 3083 = an act
regulating filling,
settlement , process of
damages,
manufacturer,
contractor etc.
Yun “Special Law” na
motorcycle collided to
ambulance.
 Implied waiver = State himself
commence litigation, enters
contract, conduct business
proprietary (rights) activity.
- “When the government enters
into contract, the state deemed
level himself into an ordinary
person.”
- “The suit would follow only if the
contract entered is proprietary in
nature = but if it is not …….
25. Suit Against Government Agencies
General Rule = must be ascertained whether or
not; to test its suability (it is found in its charter)
 Incorporated Agency = HAS A
CHARTER OF ITS OWN =
LIKE SSS, UP, City of Manila,
etc. = has character of his
owned (in other words separate
juridical personality); NOT
engaged in government function
 Un Incorporated Agency =
has NO character of his owned
(in other words NO separate
juridical personality) =MERGE
IN GENERAL MACHINERY OF
GOVERNMENT. = (no charter
but only constitution); engaged
in government function
26. Suability vs. Liability
-“ The mere fact the State is suable , it
doesn’t mean it is liable”. --- (Waiver of
Immunity of State does not mean
Concession of Liability) = Suability is
result of express & implied consent =
while Liability determined by hearing of
relevant laws and establishment of facts.
27. Whether clearly governmental function =
like repair of roads.
28. Whether clearly Not governmental
function = like gain profit from
shareholders.
29. Incorporation Clause = One of these is
the doctrine of incorporation, as
expressed in Section 2, Article II of the
Constitution, wherein the Philippines
adopts the generally accepted principles
of international law and international
jurisprudence as part of the law of the
land and adheres to the policy of peace,
cooperation, and amity with all nations. 2
(Bayan Muna vs. Romulo, G.R. No.
159618, February 1, 2011)
 Every State by reason of its
membership to = family of
Nations = Bound to GAPI =
automatically part of its own
laws.
 International law vs.
Municipal Law = efforts to
harmonize them should be
seek first (to give effect to
both)
 Municipal Law also upheld
against International Law =
virtue of Doctrine
Separation of Powers
( Gonazales vs. Hechanova)
and also under virtue of
rule making power of
Supreme Court (In re:
Garcia)
30. Rearing The Youth =
 Article II, sec. 12 the state
recognize the sanctity of family
life, as basic social autonomous
institution; equally protect the
life of mother and unborn from
conception; the right and
obligation of the parent in
rearing the youth for civic
efficiency = SHALL RECEVIED
THE AID/SUPPORT OF
GOVERNMENT.
(“BETTER HOME-BETTER
THE NATION”),
(“THE STRENGTH OF THE
FAMILY LIES IN THE
UPBRINGING OF THEIR
CHILDREN”)
 Article II, sec. 13 the state
recognizes the vital role of the
youth in nation building and
promote their physical-moral-
inspirtual-intellectual-social well
being.
 Article XIV, sec 1 the state
protect and promote Quality
Education to all citizen (to all
levels) – take step such
education accessible to all
(especially the out of school
youth; vocational training, etc.)
31. Social Justice = Art. II, sec. 10 The
state shall promote social justice in all
phases of nation development. ; Art. II
sec. 11 The state values the dignity of
every human person guarantees full
respect for human rights; Art. II sec. 18
the state affirms labor as primary social
economic force, shall promote the rights
of the worker and promote their welfare;
Art. II, sec. 21 the state promotes Rural
development and Agrarian reform.
Definition: Promotion of social justice to
insure the wellbeing and economic
security of all the people.( Calalang vs.
Williams, 70 Phil 726) The welfare of
the people is the supreme law
 Acute imbalance between
rich and poor result to
hostility and divisiveness
with them.
 The law in protecting the
rights of the laborer is
included in the Constitution
 Social Justice are not only
meant to favor the poor &
underprivileged
 Social justice is not a
license to trampled (crush)
the rights of the rich
  And the rights of the rich in  All included in the Bill of
disguise = of depending the Rights = no law shall be
poor passed that prohibit
exercising free right of
religion.
32. Social justice means the promotion of
the welfare of all the people, the  Rationale: “Strong Fences
adoption by the Government of makes good Neighbors”
measures calculated to insure economic
stability of all the competent elements of  The Idea is to delineate
society, through the maintenance of a (establish exact position) to
proper economic and social equilibrium establish boundaries to two
in the interrelations of the members of institution and avoid
the community, constitutionally, through encroachment.
the adoption of measures legally
justifiable, or extra-constitutionally,  The State prohibit from
through the exercise of powers interfering ECCLESIAS
underlying the existence of all affair of the church while the
governments on the time-honored Church prohibit (barred
principle of salus populi est suprema lex. from) from meddling
Social justice, therefore, must be SECULAR(non-religion)
founded on the recognition of the matters.
necessity of interdependence among
divers and diverse units of a society and
of the protection that should be equally
and evenly extended to all groups as a 34. Balance and Healthful Ecology and to
combined force in our social and Health = Art. II, sec. 15 the state right
economic life, consistent with the to health of the people and instill
fundamental and paramount objective of consciousness ; Art. II, sec. 16 the state
the state of promoting the health, shall protect and advance the right of
comfort, and quiet of all persons, and of the people to a balanced and healthful
bringing about "the greatest good to the ecology in accord, rhythm and harmony
greatest number." to nature.

 SC held that these

33. Separation of Church and State = Our provisions assume to exist
Constitution ensures and mandates an from inception palang ng
unconditional tolerance, without regard HumanKind (ng
to whether those who seek to profess sangkatauhan)
their faith belong to the majority or to the
minority. It is emphatic in saying that
"the free exercise and enjoyment of 35. The purpose of the
religious profession and worship shall be Non-impairment clause of the
without discrimination or Constitution =  is to safeguard the
preference."( Re: Letter of Tony Q. integrity of contracts against
Valenciano, A.M. No. 10-4-19-SC, unwarranted interference by the State.
March 07, 2017) As a rule, contracts should not be
tampered with by subsequent laws
that would change or modify the
rights and obligations of the parties
must yield to the police power of the
 Art. II, sec. 6 The state.
Separation of Church and
State shall be Inviolable. 36. The benevolent neutrality theory
believes that with respect to these
 governmental actions, accommodation
of religion may be allowed, not to
promote the government's favored form
of religion, but to allow individuals and
groups to exercise their religion without
hindrance.
37. Conclusive Judgement = is a species of
Res Juridicata. = Hindi muna pwede pag
usapan (directly or indirectly) kapag
tapos na kaso.
38. Separation of Powers (neither;nor) =
neither The Congress, the President
nor Judiciary may encroach = on fields
allocated = to the other branches of
Government.
 Purpose:
- Intended to prevent
concentration of authority (in
one person or group of person)
that may lead to irreversible
(unable to correct) error or
abuse;
- Intended also to secure action
and forestall (preempt) over
action
- To avoid despotism (tyranny;
dictatorship)
- To obtain efficiency
39. The three branches of government has
exclusive cognizance = within its
respective own
= constitutional allocation; sphere
40. Judicial = apply/interpret;
Executive = enforce;
Legislative = enact
41. Desirable if there is certain degree of
inter-dependence = among three
branches
42. Blending of Powers (Delegation of Powers)
=
 Powers are not confined
exclusive = but in fact assigned
and shared.
 The other departments may
collaborate with other
departments = example is
General Appropriation Law
- (begins with President
preparation for budget);
- (which becomes the basis of the
bill of Congress) = then go
back to President to sign it and
becomes a law.
- = example is (Grant of Amnesty
of President)
- (which requires concurrence of
majority of Congress)
43. Check and Balance =
 by means (one department)
may resist encroachment;
 by means (one department)
may rectify mistake;
 by means (one department)
may rectify excess commission
 Exercise (itself) authority is not
arrogant = the power assigned
to them
 Example: The Congress may
limit the jurisdiction of the courts
(SC, CA, RTC,MTC) in the
Philippines. Even abolish
inferior tribunals/courts;
 Example: The Congress law
making power is checked by
veto power of the President
 Example: The Congress may
refuse concurrence to an
Amnesty given/proclaimed by
the President
44. Role of the Judiciary = sees to it that
constitutional distribution of powers = is
respected and observed (among
several department)
 If the SC mediates = allocates
constitutional boundaries;
invalidate the acts = what is
upholding is the Supremacy of
Constitution
 To determine whether a certain
department exercise validly =
given power by Constitution.
 Event there is Absent of express
conferment of power = papasok
 naman si Doctrine of Necessary  The Confirmation of Amnesty
Implication  Confirmation of Presidential
Appointment (through
45. Justiciable Question = posses/implies = Commission of Appointments)
rights legally demandable and  Impeachment
enforceable  Amend/Revision of Constitution
46. Political Question = is a matter to be
determine by another department 49. Senate = 24 senators = elected at large
rather than law. by qualified voters
50. The Party List representative = 20% of
total member of the body = including
the representative

47. Legislative Department; House of

Representatives; District
Representatives and Questions of
Apportionment;
 Art. VI, Section 5. (1) The House
of Representatives shall be
composed of not more than
two hundred and fifty
members,
 who shall be elected from
legislative districts apportioned
(divide) among the provinces,
cities, and the Metropolitan
Manila area in accordance with
the number of their respective
inhabitants, and
 on the basis of a uniform and
progressive ratio shall be
elected through a party-list
system of registered national,
regional, and sectoral parties
or organizations.
 The only difference is that the
members of the Senate
represent the people at large
while the members of the
House represent the people in
legislative districts = Carpio, J.

48. The Congress = also discharge NON

LEGISLATIVE POWER =
 Canvass of Presidential Election
 Declaration of existence of
State of War