CONSTITUTIONALLAW

PART II
Atty. DUKA
The State
● It is a community of persons, more or less
numerous,
● Permanently occupying a definite portion of
territory,
● Independent of external control and
● Possessing an organized government to which the
great body of inhabitants render habitual obedience.
(Article 1, 1933 Montevideo Convention)
4 elements of the State
● People – the inhabitants of the state
● Territory – its is the fixed portion of the surface
of the earth inhabited by the people of the state
● Government
● Sovereign (or independence)
GOVERNMENT
● defined as the body, entity, invested with the
power to manage a political unit,
organization or more often, a State.
Government, from the Latin locution
gubernare - means steer a ship/vessel -
describes the governing authority in charge
of running a State.
Parliamentary Government
● The state confers upon the legislature the power
to terminate the tenure of the executive
● Under this system, the Cabinet ministry is
immediately and legally responsible to the
legislature and politically responsible to the
electorate.
Presidential Government
● Where the executive is independent of the
legislative as to tenure, policies and acts.
● The president and the members of the legislative
department are directly elected by people.
De Jure vs. De Facto government

● A De jure government is a functioning government

that is legally established. This means that it is the
government that is recognized by the law and has
the authority to govern a country or state. (by law)
● De facto – is founded not on existing constitutional
laws of the State but it has the support of the
majority of the people. (in law it is meant to mean in
practice but not necessarily ordained by law)
De Facto government
● There are three kinds of de facto government:
○ the government that gets possession and control of, or usurps by
force or by the voice of the majority, the rightful legal government
and maintains itself against the will of the latter;
○ that established as an independent government by the inhabitants
of a country who rise in insurrection against the parent state; and
○ that which is established and maintained by military forces who
invade and occupy a territory of the enemy in the course of war,
and which is denominated as a government of paramount force.
De Facto government
● The Second Republic of the Philippines was a de facto
government of paramount force, having been established by
the Japanese belligerents. On the other hand, in a decision
rendered by the Supreme Court it declared that the
government under Corazon Aquino was a de jure government
as the people have already accepted it and the community of
nations have recognized its legitimacy.
Sovereignty

● It is the supreme power of the

state to enforce its will on its
member within its jurisdiction
and to have freedom from
foreign control.
Is sovereignty absolute?
● While sovereignty has traditionally been deemed
absolute and all – encompassing on the domestic
level, it is however subject to restrictions and
limitations voluntarily agreed by the Philippines,
expressly or impliedly, as member of the family of
nation. Tanada vs, Angara, May 2 1997
Is sovereignty absolute?
● By the doctrine of incorporation , the country is
bound by generally accepted principles of
international law, which are considered to be
automatically part of our own laws.
● One of the oldest and most fundamental rules in
international law is pacta sunt servanda –
international agreements must be performed in
good faith.
Principle of State Continuity

● The state continues as a juristic

being notwithstanding changes in
its circumstance provided only that
changes do not result in the loss of
any of its essential elements.
State Immunity
● The state may not be sued without its consent (Section
3, Article XVI)
● True, the doctrine, not too infrequently, is derisively
called “the royal prerogative of dishonesty” be cause it
grants the state the prerogative to defeat any
legitimate claim against it by simply invoking its non-
suability. (Department of Agriculture vs. NLRC, Nov. 11,
1993)
Reason for Immunity
● With the well-known propensity on the part of our
people to go to court, at the least provocation,
● The loss of time and energy required to defend
against lawsuit,
● In the absence of such a basic principle that
constitutes such an effective obstacle, could be
very well be imagined.” (Republic vs. Villasor,
November 28, 1973)
Immunity is not absolute
● The state may not be sued without its consent is not really
absolute for it does not say that the state may not be sued
under any circumstance.
● On the contrary, as correctly phrased, the doctrine only
conveys, “the state may not be sued without its consent”, its
clear import then is that the state may at times be sued.
● The States’ consent may be given either expressly (by law) or
impliedly (if it enters into a contract and the state
commences litigation, thus opening itself to a counterclaim.
(Republic vs. NLRC, October 17, 1996)
When the suit is deemed against
the state
● The suit is deemed against the state when:
○ The republic is sued by its name
○ The suit is against an unincorporated government
agency;
○ The suit is on its face against a government
officer but the case is such that the ultimate
liability will belong not to the officer but to the
government. (Republic vs. Sandoval)
Powers of the Government

● Limited government
○ A government that is legally
restricted in its use of power.
Separation of Power
● The principle of separation of powers ordains
that each of the three great branches of
government has exclusive cognizance of and
is supreme in matters falling within its own
constitutionally allocated sphere. (Bureau of
Customs vs. Teves)
Separation of power
● The separation of powers is fundamental principle in
our system of government.
● It obtains not through express provision but by
actual division in our constitution.
● Each department of government has exclusive
cognizance of matters within its jurisdiction, and is
supreme within its own sphere. (Angara vs. Electoral
Commission)
Separation of Powers
● Our governmental structure rests on the
principle of separation of powers.
● Under our constitutional order, the legislative
branch enacts law, the executive branch
implements the law, and the judiciary
construes the law. (PBOAP vs. DOLE)
FIN