II.
THE STATE
A state is a community of persons, more or
less numerous, permanently occupying a
definite territory, independent of external
control and possessing an organized
government to which the great body of
inhabitants render habitual obedience.
Atty Bong Lo’s Def: A state is a community
of persons, more or less numerous,
occupying a definite portion of territory
haven an agency by which it expresses its
will with power to command and demand
obedience.
Four Elements of the State
People which is more or less numerous, not
too big to govern and not to small without
governance
Territory which must be fixed
Government agency by which it expresses
its will
Sovereignty power to command and
demand obedience
It is important that these four elements are
present otherwise you don’t have a state.
Pasay City is a government but it lacks
sovereignty therefore not a State.
In International Law, they added another
element which is International
Recognition.
Considering you have all the elements
however other states do not recognize you
as a State then you are not a State as far
as they are concern.
Ex: Taiwan. They have all the elements of
the State however they are being
recognized as province of China.- One
China Policy.
However, as long as you have the four
elements you are a State.
PEOPLE
The word people in our 1987 Constitutions
is used in different concepts.
It refers simply to the inhabitants of the
state. those who are dwelling in the
territory. Whether you are a citizen or not.
a. As inhabitants (Article III, Sections 1
&2)
Section 2. The right of the people to be
secure in their persons, houses, papers, and
effects against unreasonable searches and
seizures of whatever nature and for any
purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue
except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of
the complainant and the witnesses he may
produce, and particularly describing the
place to be searched and the persons or
things to be seized.
The word people here refers to the
inhabitants so even if you are a foreigner in
the Philippines you are protected of your
right to privacy.
b. As electors
Group of citizens granted with the privilege
of the right to vote.
c. As citizens
As the Constitution says, access to official
records shall be accorded to citizens. Those
who are granted the privilege and the
rights and obligations and duties to belong
in a political community.
GOVERNMENT
- Is the agency by which it expresses its
will.
Government
- an element of the State
- You may have a government without
having a state.
- May change from time to time
State
- You cannot have a state without a
Government
- Remains the same
Nation
- Sociological term
- Group of persons sharing the same
ideals, customs, traditions, beliefs and
language
- May or may not constitute a state
Ex: USA
State
- A legal or political concept
- May be made up of one or more nations
Ex: Nigeria- there are many tribes
Government of the Republic of the
Philippines refers to the corporate
governmental entity through which the
functions of government are exercised
throughout the Philippines, including, save
as the contrary appears from the context,
the various arms through which political
authority is made effective in the
Philippines, whether pertaining to the
autonomous regions, the provincial, city,
municipal or barangay subdivisions or
other forms of local government.
The Government has two important
functions:
Constituent vs. Ministrant functions
a. Constituent function - pertains to the
maintainance of peace and order,
prevention of crimes, regulating
property rights, administration of
justice, national defense and security
and those relating to foreign relations.
- Constitutent function is exercised by the
State as attributes of sovereignty. This is
done under the authority of the Sovereign.
- These are acts of the State
It constitutes the very bonds of society and
is therefore compulsory. Among the
constituent functions are the following:
(1) The keeping of order and providing the
protection of persons and property from
violence and robbery;
(2) The fixing of the legal relations between
husband and wife and between parents and
children;
(3) The regulation of the holding,
transmission and interchange of property,
and the determination of its liabilities for
debt or for crime;
(4) The determination of contractual rights
between individuals;
(5) The definition and punishment of
crimes;
(6) The administration of justice in civil
cases;
(7) The administration of political duties,
privileges and relations of citizens; and
(8) The dealings of the state with foreign
powers; the preservation of the state from
external danger or encroachment and the
advancement of its international interests.
(Cruz, Philippine Political Law, 2014
edition, p. 34)
b. Ministrant function
It refers to that undertaken to advance the
general interests of society, such a public
works, public charity, and regulation of
trade and industry. (Cruz, Philippine
Political Law, 2014 edition, p. 34)
Optional on the part of the government.
Ex: promotional of welfare, prosperity and
progress of the people.
Importance of distinguishing between the
two because there are legal implications.
-In State Immunity: you cannot sue the
State in the performance of constituent
function. However in the performance of a
ministrant function you have to qualify. If
it is for proprietary purpose or
governmental purpose.
Parens Patriae (Parent of the Nation)
- It is a Latin phrase, which means, father
of the country.
Government of the Philippine Islands v.
Monte de Piedad
There was a storm. People donated locally and
internationally. The problem was the victims
did not received the donation. So the
Government filed a case in behalf of the
victims. However the lock stand of the
Government was questioned. Hence, the
Supreme Court cannot exercise the power of
judicial review.
The Supreme Court said here is a situation
where the State is acting as the protector of the
people who are marginalized because of the
typhoon under the doctrine of Parens Patriae.
Cabanas v. Pilapil
X filed a case for the administration of the
properties of the decedent. However, the other
party argued that X has no legal standing. The
Court held that since it is the property if the
child, the Court acted as the Parent and
granted what is for the best interest of the child
and appointed X the mother as the
administrator.
De Jure government
- Government that is established according to
the legal processes of the State.
- It has all the attributes of a validly created
government legally.
De facto government
- Government that is established not in
accordance with the legal processes in
fact against the legal processes of that
State.
Kinds
(1) 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.
(2) That established as an independent
government by the inhabitants of a country
who rise in insurrection against the parent
state.
(3) 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.
1) Established by the people who have
overthrown the existing duly
constituted authority.
2) When a government is formed by the
people in a territory and separated
themselves from the parent state. Ex:
Mindanao humiwalay not in accordance
with the law
3) G o v e r n m e n t i s m a i n t a i n e d a n d
established by military forces who
occupy the territory.
Importance of distinguishing between the
two because there are legal implications.
Effects of military occupation
- If there exist a duly constituted
government then it was replaced by a de
facto government the political laws of
that state are SUSPENDED
automatically. The political law of the de
facto government will govern. Under the
 principle in international of jus
postliminium.
- Subsequently, when the de facto
government left the political law will be
revived.
- There being no change of sovereignty,
the political laws of the territory
occupied by belligerent occupants are
merely suspended, subject to revival
under the jus postliminium upon the end
of the occupation. The non-political laws
are deemed continued unless changed by
the belligerent occupant since they are
intended to govern the relations of
individuals as among themselves and are
not generally affected by changes in
regimes or rulers.
- However, civil laws are not affect by the
occupying state.
- Ex: Cory Aquino ruled a revolutionary
government. She signed an EO
establishing the freedom constitution.
She ruled by decree because of the
revolutionary power.
- The government of Cory was recognized
by other countries such as France.
- She formed a CONCOM to draft a new
constitution. She chose the members and
that consti was ratified by the people.
- In the case of Better Philippines v
Corazon Aquino, the government of Cory
was questioned saying that her
government was not a legitimate
government because it was not
established according to the rules in
1973 constitution. The SC ruled that the
legitimacy of the government is a
political question it belongs to the realm
of politics where the people are the
judge. Moreover, the foreign government
has been accepted by the people and it is
in effective control of the entire
Philippines and not only that the
community of nations have recognized
the government so it is not a de facto but
a de jure government.
- Revolution - you won if you did not the
crime would be rebellion
- People Power II is not a revolution it is
just a change in president.
- People Power I is a revolution because it
changes everything.
Forms of governments
a. based on number of rulers
i. Monarchy - ruled by one
A form of government in which power is
vested in the hands of a single person
without regard to the source of his election
or the nature or duration of his tenure.
ii. Aristocracy - ruled by few
A form of government in which a few
persons – the aristocrats holding
exceptional rank and privileges, especially
the hereditary nobility, exercise the power
of the state. It is in this context that it
means the government by an elite of the
society that has high social status, wealth,
and political power.
iii. Democracy - ruled by many
A form of government in which the
supreme power is vested in the people and
exercised directly by them or by their
elected delegates or representatives under
a free electoral system.
b. based on accountability to the people
i.Democracy
- Government that is accountable to the
people. Rule day the many. It is the
government of the many, by the many,
and for the many.
ii. Totalitarian government
- The government intervenes in almost all
aspects of life.
iii. Authoritarian government
- His power is based in law on which he
himself promulgated without the consent
of the people. There is a semblance of
authority to his dictatorial power. The
authority did not come from the people.
iv. Dictatorial or Autocratic government
- Not accountable to the people, they do
whatever they want.
c. based on the economic system
i. Free Enterprise System/ Laissez Faire
- The government does not interfere much
with the market. It lets the market
dictates its own market
ii. Command economy
- Government controls everything from
production, distribution, consumption
and utilization of goods and services.
iii. Socialism
- Equal opportunity for everyone.
iv. Communism
- There is much intervention by the
government in the market, they give
what you need and they get from you
what you are able to give. From each
according to his abilities to each
according to his needs.
v. Capitalism
- The market is dependent on the capital.
The more money that you have the more
opportunity that you have.
No sense of comparison between
communism and democracy.
- Communism is a social and economic
system. Also a form of democracy.
- Democracy is a political system.
d. based on legislative-executive relations
i. Presidential government
- This is a form of government in which
the state makes the executive branch
constitutionally independent of the
legislature.
- Three branches are co-equal. In order to
avoid one branch having more power
than the other there is a system of
checks and balance they check each
other. Their power is separate, one
cannot encroach the other under the
principle of separation of powers.
- President has a fixed term. He is the
head of the State hence symbol of unity
and the Representative of the People.
Advantage of a Presidential government is
that no one can perpetuate themselves into
power because their term ends.
Disadvantage if you have a good President
his term will end. If you have a bad
president you have to wait for the end of
his term. Impeachment is a difficult
process.
- If the legislative has a policy but the
President does not want to implement it
useless. If the President wants a policy
but the legislative doe snot want to
formulate it useless.
ii. Parliamentary government
- Instead of separation of powers they
have fusion of powers. The relationship
between the legislative and the executive
is more harmonious.
- Process: the people will elect members if
the legislative which is called the
Parliament. The elected are called
Members of Parliament. Among
themselves they have to choose a Prime
Minister who will run the affairs of the
Government.
- The Prime Minister will appoint his
cabinet or his Ministers/ Secretaries
(Presidential). But the Ministers are
from the Members of the Parliament.
- The Majority is the Government. Most
likely the Prime Minister will come form
the Majority Party.
- The Minority Party is the opposition,
they checks the Majority Party.
- The Prime Minister can dissolve the
Parliament prior to the schedules
regular election. So there is a special
election.
- The Prime Minister is the Head of the
Government but he is not the Head of
the State.
- President is the Head of the State. He
has nominal power and elected by the
people.
based on divisions of the State
i. Unitary government
- This is a form of government in which
the control of national government and
local affairs is exercised by the central or
national government.
- Philippines One star ,one government,
where all the power is centralized to
Imperial Manila.
ii. Federal government
- This is a form of government in which
the powers of the government are
divided between two sets of organs, one
for the national affairs, and the other, for
local affairs, with each organ being
supreme within its own political sphere.
SOVEREIGNTY
Power of the State to command and
demand obedience.
Kinds:
- Internal sovereignty
Supremacy of persons in a state to rule
over other persons in the territory.
- External sovereignty
Independence of the State from the control
of a foreign state.
- Legal sovereignty
Possession of power or authority in law
granted by the People to its duly
constituted Representatives.
- Political sovereignty
It is the power behind the legal sovereign,
or the sum of the influences that operate
upon it. The sum of all the influences in the
State which is the basis of the law is
political sovereignty.
- Direct Sovereignty
Exercise of the power by the people
themselves. Like in election, plebiscite,
initiative.
- Indirect Sovereignty
People Exercise their power through
representatives which they have chosen.
A Representative Government is a
Republican Government. Art 2 Sec 1
Philippines is a Democratic and Republican
State. Sovereignty resides in the people
and all the government authority exercise
by the representative emanates from them.

Dual Aspect in Sovereignty
a. Dominium
This kind of act is an independent
propriety right for possession, use,
exploration, disposition, sale and control of
the State over lands. These acts constitute
a proprietary act.
b. Imperium
This kind of act is the right of the State to
implement its own laws to secure
obedience, maintain peace and order, etc.
These acts constitute a governmental act.
Characteristics
(1) Permanent: it continues without
interruption
(2) Exclusive
(3) Comprehensive: it extends to all the
people and property in its territory
- Territorial, personal and extra-
territorial jurisdiction
a. Territorial jurisdiction
It refers to the geographical area
within which its powers can be
exercised.
b. Personal jurisdiction
It refers to the power or authority to
exercise such to persons who are
citizens or subjects of a State.
c. Extraterritorial jurisdiction
It refers to the authority of the
State to exercise its powers outside
its territory.
(4) Absolute
(5) Indivisible
(6) Inalienable
(7) Imprescriptible: it cannot be lost despite
non assertion or non use for certain period
of time
(8) United: it cannot be divided without
producing another State.
TERRITORY
Treaty of Paris
Spain ceded Philippine Islands to the US
for $20M with technical description.
However, there are islands that were not
included during the cessation. They try to
cure the defect by entering into another
treaty.
US-Spain Treaty, 7 November 1900
Cagayan, Sulu and Sibutu and their
dependencies.
US-Great Britain Treaty, 2 January 1930
The adjustment of territorial borders
include Turtle and Mangsee Islands.
*Under Tydings Mcduffie Law the US will
prepare us for independence for 10 years.
1935 Constitution
Article I.—THE NATIONAL TERRITORY
Section 1. The Philippines comprises all the
territory ceded to the United States by the
treaty of Paris concluded between the
United States and Spain on the tenth day
of December, eighteen hundred and ninety-
eight, the limits of which are set forth in
Article III of said treaty, together with all
the islands embraced in the treaty
concluded at Washington, between the
United States and Spain on the seventh
day of November, nineteen hundred, and in
the treaty concluded between the United
States and Great Britain on the second day
of January, nineteen hundred and thirty,
and all territory over which the present
Government of the Philippine Islands
exercises jurisdiction.
geographical, economic and political
entity, or which historically have been
regarded as such (Article 46,
UNCLOS).
By historic right or legal title
Ex: Sabah
f. Republic Act No. 3046, 17 June 1961

- This provision includes the islands of This statute defines the territorial
Batanes. baselines of the Philippines.

1973 Constitution g. Republic Act No. 5446, 8 September 1968

Article I This statute amended RA 3046 with the

THE NATIONAL TERRITORY
Section 1. The national territory comprises
the Philippine archipelago, with all the
islands and waters embraced therein, and
all the other territories belonging to the
Philippines by historic right or legal title,
including the territorial sea, the air space,
the subsoil, the sea-bed, the insular
shelves, and the other submarine areas
over which the Philippines has sovereignty
or jurisdiction. The waters around,
between, and connecting the islands of the
archipelago, irrespective of their breadth
and dimensions, form part of the internal
waters of the Philippines.
*The Philippine Archipelago islands,
waters, and other territories over which the
Philippines exercise sovereignty or
jurisdiction.
addition of the claim of Sabah under the
territorial jurisdiction of the Philippines.
h. Presidential Decree No. 1596, 11 June
1978
This law incorporated the portion of
Spratly Islands into a municipality named
Kalayaan under the province of Palawan.
1) Terrestrial Domain
- Land
2) Fluvial Domain
- Water
3) Aerial Domain
- Airspace beyond the terrestrial and
fluvial domain

- Archipelago is a group of islands

surrounded by water.

- Body of water studded with islands.

- Group of islands including parts of
islands, interconnecting waters, and
other natural features which are closely
interrelated in such islands, waters and
other natural features, form an intrinsic