POLITICAL LAW Q. Define Political Law (Bar q.

1938, 1952, 19570)

Political Law is that branch of public law which deals with the organization and operations of the governmental organs of the state and defines the relations of the State with the inhabitants of the territory (People v. Perfecto, 43 Phil 887, 1922; Macariola v. Asuncion, 114 SCRA 77, 1982). Q. A. 1. 2. 3. 4. 5. 6. Constitutional Law. Administrative Law Law on Municipal Corporations Law on Public Officers Election Laws Public International Law CONCEPT OF THE STATE Q. What is a state and enumerate its elements? What is the scope of Political Law? (Bar q. 1938, 1952)

A. It is a community of persons, more or less numerous, permanently occupying a fixed territory, independent of external control, possessing an organized government for political ends to which the great body of inhabitants render habitual obedience (Montevidio Convention of 1933). As stated in CIR v. Rueda (42 SCRA 23, 1971), a state is a politically organized sovereign community independent of outside control bound by ties of nationhood, legally supreme within its territory, acting through a government functioning under a regime of law The elements are (PTGS): 1. People, 2. Territory, 3. Government, 4. Sovereignty. Q. Distinguish state from nation.

A. A state is a legal concept, while a nation is an ethnic concept. The Constitution though, uses the two terms interchangeably to designate the legal concept of the state. There may be one nation in one state, like the Philippines. There may also be several nations within a single state and conversely, several states in one single nation. There may also be several nations in several states like the USA. Q. Is there a specific number of people who should occupy a state before one could be considered a state?

A. There is no legal requirement as to their number. People as an element of a state is described as a community of human beings male and female, sufficient in number and capable of maintaining the permanent existence of the community and held together by a common bond of law. Thus, it is enough that the number is sufficient to maintain its existence and defend itself.

Q.

Is Vatican a state?

A: Yes. The 1929 Lateran Treaty between Italy and the Holy See established the statehood of the Vatican for the purpose of assuring to the Holy See absolute and visible independence, and of guaranteeing to it indisputable sovereignty also in the field of international relations. The same treaty recognized the right of the Holy See to receive foreign diplomats, to send its own diplomats to foreign countries, and to enter treaties according to international law. The Philippines has also accorded the Holy See the status of a foreign sovereign. The latter, through its ambassador, the Papal Nuncio has had diplomatic representations with the Philippine government since 1957(Holy See v. Rosario, 238 SCRA 524, 1994). Q. What is a territory and what comprises the national territory of the Philippines? A. It is the fixed portion of the surface of the Earth inhabited by people of the state. The national territory comprises (AT): i. The Philippine Archipelago; and ii. All other Territories over which the Philippines has sovereignty or jurisdiction. Note: It was the Art. III of Treaty of Paris on December 10, 1898 that ceded to the U.S. the Philippine ARCHIPELAGO. However, the Treaty of Paris left some doubts as to the inclusion within the ceded territory of the islands of Batanes, Sibutu and Cagayan , and of the Turtle and Mangsee, because of their geographical distance from the archipelago. The Nov. 7, 1900 Treaty of Washington corrected the error with respect to Sibutu and Cagayan islands. The January 2, 1930 convention between Great Britain and the U.S., clarified the jurisdiction of the Philippines over the Turtle and Mangsee Islands. The doubts with respect to the Batanes islands, however, were left unclarified in spite of the fact that from time immemorial, these islands had indisputably formed part of the Philippines. Hence, to remove doubt, the 1935 Constitution added the clause all the territory over which the government exercises jurisdiction. The 1973 Constitution affirmed the title to the Batanes Islands by the term historic right. The 1987 Constitution covered it by the clause other territories over which the Philippines has sovereignty or jurisdiction. Noteworthy that under the definition of archipelago in Article 46, 1982 Convention on the Law of the Sea, the Batanes Islands can be considered part of the Philippine Archipelago and not just of other territories outside the archipelago. Q. What is meant by the archipelagic doctrine? (Bar q. 1975, 1979, 1989) and how is this reflected in the 1987 Constitution? (Bar q. 1989)

A. The Archipelagic Doctrine emphasizes the unity of the land and waters by defining an archipelago as group of islands surrounded by waters or a body of waters studded with islands. An imaginary single baseline is drawn around the islands by joining appropriate points of the outermost islands of the archipelago with straight lines and all islands and waters enclosed within the baseline form part of its territory. The doctrine is reflected in the 1987 Constitution by stating that the waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines (Art. 1,1987 Const). Note: The vast areas of water between the islands which the Philippines considers internal waters are not subject to the right of innocent passage. The Convention on the Law of the Sea, however, calls them archipelagic waters thus subjecting to the right of innocent passage through passages designated by the archipelago concerned. For this reason, the Philippines ratified the convention with reservations. Q. What is the legal basis of the claim of the Philippines to a part of the Spratly Islands? (Bar q. 2000)

A. The Spratlys is not considered as part of the Philippine Archipelago but is nevertheless part of the national territory. It was never part of the territories ceded by Spain to the United States by virtue of the Treaty of Paris or of subsequent treaties. And though the Japanese occupied the Spratlys during the Second World War, Japan formally renounced its rights and claims to the islands in the San Francisco Peace Treaty of 1951. The San Francisco Treaty or any other international agreement, however, did not designate any beneficiary state following the Japanese renunciation of right, thus, subsequently making the spratlys terra nullius. The Spratly group of islands is part of the national territory since the Philippines exercises sovereignty and jurisdiction over it, after the assignment of Tomas Cloma of his rights to the islands- by virtue of his discovery, to the Philippine government. The Philippines has effectively occupied the islands, effecting a real taking of possession and establishing some kind of administration such as creating a municipality called Kalayaan and consistently holding national and local elections in these islands. PD 1596 of 1978 confirmed its sovereign title and declared the Kalayaan Islands part of Philippine territory. Q. Define government and distinguish it from state?

It is the agency or instrumentality, through which the will of the state is formulated, expressed and realized. The state is an ideal person, invisible, intangible, immutable and existing only in contemplation of law; while the government is an agent and, within the sphere of its agency, it is a perfect representative, but outside of that, it is lawless usurpation. The transitions from the 1935, to 1973, and to 1987 Constitution involved changes of government but not of state. The transition from President Marcos to President Aquino involved the change in government, but the transition from Pres. Estrada to Pres. Arroyo did not involve change of government, as it was only change in administration.

Q. What is direct state action and how is it related to the government and state? A. The mandate of the government from the state is to promote the welfare of the people. Accordingly, whatever good is done by the government is attributed to the state, but every harm inflicted on the people is imputed not to the state but to the government alone. Any injury or harm inflicted by the government may justify the replacement of such government by revolution, theoretically at the behest of the state, in a development known as direct state action. Q. A. Classify Functions of the government. They are:

i. government or constituent mandatory for the government to perform because they constitute the very bonds of society; ii. ministrant intended to promote the welfare, progress, and prosperity of the people. It is an optional function (Bacani v. Nacoco, 100 Phil 468, 1956). The constituent-ministrant classification of functions of government though still acceptable, has become unrealistic if not obsolete. The Constitution obligates the State to promote social justice and has repudiated the laissez faire policy. Thus, what used to be optional functions of the government has now become mandated or imposed. The areas which used to be left to private enterprise and initiative and which the government was called upon to enter optionally and only because it was better equipped to administer for the public welfare than any private individual continue to lose their well-defined boundaries and to be undertaken in its sovereign capacity if it is to meet the increasing challenges of the times (ACCFA v. Federation of Labor Unions, 30 SCRA 649, 1969). Q. A. How are governments classified according to their legitimacy?

A government may either be de jure or de facto. De Jure government is one truly and lawfully established by the constitution of a State but which having been in the meantime displaced is actually cut off from power or control. It is established by authority of the legitimate sovereign. De Facto government is a government of fact. One actually exercising power and control of the machinery of the State as opposed to the true and lawful government. It is established in defiance of the legitimate sovereign. Q. Classify the kind of government under the Japanese occupation.

A. It was a de facto government of paramount force, having been established by the Japanese belligerent during its occupation in the Philippines in World War II. Q. Classify the kind of government under the Cory Aquino and the Freedom Constitution?

A. It was a de jure government because it was established by authority of the legitimate sovereign, the people. The February 25, 1986 Proclamation No. 1 announced that Pres. Aquino and Vice Pres Laurel were taking power in the name and by the will of the Filipino People. Subsequently, as succinctly stated in Pres. Aquinos Proclamation No. 3 (dated March 25, 1986, the day Provisional Constitution took effect), the new government was installed through a direct exercise of the power of the Filipino people and that the Revolution was done in defiance of the Provisions of the 1973 Constitution. The resulting government therefore was a DE JURE government. It was revolutionary government bound by no constitution or legal limitations except treaty obligations that, as the DE JURE government in the Philippines, assumed under international law (Republic v. Sandiganbayan, 407 SCRA 10, 2003). Q. What is Sovereignty?

A. It is the supreme and uncontrollable power inherent in a state by which that state is governed. Q. A What are the kinds of sovereignty?

They are i. Legal; ii. political; Legal sovereignty is the possession of unlimited power to make laws. It is the authority by which a law has the power to issue final commands. Political sovereignty is the sum total of all the influences in a State which lie behind the law. It is the sovereignty of the electorate or the whole body politic- the power of the people. 1, Art. II of the Constitution refers to political sovereignty. Q. Distinguish sovereignty from independence.

A. Sovereignty is the supreme power of the State by which the State is governed. It has 2 ASPECTS: i. internal ii. external, In its internal aspect, sovereignty is the power inherent in the people or vested in its ruler by the Constitution to govern the state. Sovereignty in its internal aspect does not, in any degree depend upon its recognition by other states. Internal sovereignty refers to the supremacy of a state to control its internal affairs. The external sovereignty of any state requires recognition by other states in order to render it perfect and complete. It refers to the power of the state to direct its relations with other states. It is the freedom of the state from the subjection to or control by a foreign state, that is the supremacy of the State as against all foreign wills. This external manifestation is what is called INDEPENDECE. Q. What is sovereignty of the people?

A. The Filipino people as sovereign have the right to constitute their own government, to change it, and to define its jurisdiction and power. The Constitution recognizes the sovereignty of the people in the following instances: 1. the article of suffrage; 2. the election of national and local official; 3. the merger, creation, abolition or revision of local units are subject to the approval of the majority of the votes cast by the directly affected constituent units; 4. the creation of the autonomous region s shall be subject of the majority votes cast by the directly affected constituent units; 5. ratification of the constitutional amendments and the decision whether a constitutional convention is necessary to amend the constitution; 6. Proper exercise of initiative, referendum, and recall Q. Can sovereignty be suspended?

A. No. Sovereignty cannot is not deemed suspended because of its characteristics being permanent, exclusive, comprehensive, absolute, indivisible, inalienable, and imprescriptible (Laurel v. Misa, 77 Phil 856). It was the acts of sovereignty which cannot be exercised by the legitimate authority that is deemed suspended. Thus, sovereignty over the Philippines remained with the US during the Japanese occupation, although the Americans could not exercise any control over the territory (Co Kim Chan v. Valdez, 75 Phil 113). Q. Is sovereignty absolute?

A. While sovereignty has traditionally been deemed absolute and allencompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agred by the Philippines, expressly or impliedly, as member of the family of nations. Unquestionalby, the Constitution did not envision a hermit-type isolation of the country from the rest of the world (Tanada v. Angara, 272 SCRA 18, 1997). Q. State the doctrine of state immunity.

A. The doctrine says that a state may not be sued without its consent. It is one of the generally accepted principles in international law, which The Philippines has now adopted as part of the law of the land having embodied in 3. Art. XVI of the 1987 Constitution (DOH v. Phil Pharmawealth, 518 SCRA 240, 13 March 2007). Q. Can the doctrine of state immunity be applicable to its officials sued for acts in the discharge of their duties? A. Yes, as long as the said official performed his acts in the discharge of his duty. While the doctrine of state immunity appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The suit is regarded as one against the state where satisfaction of

the judgment against the officials will require the state itself to perform a positive act, such as the appropriation of the amount necessary to pay the damages against them (DOH v. Phil Pharmawealth, 518 SCRA 240, 13 March 2007). But the rule does not apply where the public official is charged in his official capacity for acts that are: I. Unauthorized, unlawful, or injurious to the rights of others; II. Where the public official is being sued not in his official capacity but in his personal capacity, although the acts complained of may have been committed while he occupied a public position. (DOH v. Phil Pharmawealth, 518 SCRA 240, 13 March 2007) They are not suits against the state and thus, not within the rule of immunity of the state from suit. The rationale for this ruling is hat the doctrine of state immunity cannot be used as an instrument for perpetrating injustice. (DOH v. Phil Pharmawealth, 518 SCRA 240, 13 March 2007) Q. Is the rule on non-suability of state absolute?

A. No. What the Constitution mandates is that, it cannot be sued without its consent. It is a clear import then that the state may at times be sued. The state may expressly or impliedly waive it. Express consent may be made through general or special law. Implied consent on the other hand, is conceded when the state itself commences litigation, thus opening itself to counterclaim, or when it enters into a contract. Q. The PCGG sequestered 227 shares of stocks in Negros Occidental & Country Club at

Express consent - manifested through: 1. general law 2. special law The express consent of the state to be sued must be embodied in a duly enacted statute.

Implied consent given when: 1. the state itself commences litigation or 2. when it enters into a contract

Note: Waiver of immunity by the State does not mean concession of its liability. When the State gives its consent to be sued all it does is to give the other party an opportunity to prove that the State is liable. Determination if state is real party in interest is needed, i.e., when claim if proved will be direct liability of state (and not merely of the officer impleaded.) Q. A group of protesters assembled near Malacanang. They were fired upon by riot police causing the death and injury of some. A public outcry against the shooting happened. Subsequently the government formed a fact-finding commission to investigate the incident. The President even promised that the relatives of the protesters that their

grievances would be heard and they will be compensated. The commission also recommended for the government to indemnify the heirs and the victims. This however did not materialize, forcing the heirs to sue the state arguing that by such acts the State has consented to be sued and be made liable. Decide. A. The commission is only a fact-finding body. Whatever may be the findings of the Commission, the same shall only serve as a cause of action in the event that any party decides to litigate their claim. Whatever recommendation it makes cannot in any way bind the State immediately. Such recommendation is not final and executory. Whatever acts or utterances that the President may have done or said, the same are not tantamount to the State having waived its immunity from suit. Such act by the President does not mean that there was an admission by the State of its liability. (Republic vs. Sandoval GR NO. 86407)