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5
Page No.1
GOVE!"E!#
Elements of the State
DE $%E &!D DE '&C#O
GOVE!"E!#(
Co )im C*am v. Val+e, #an )e*
(194!
Co Km Cham has a cv case n CFI Mana
nsttuted under the Repubc of the
Phppnes durng the perod of |apanese
occupaton. |udge Dzon aeges that the
case shoudnt be contnued because:
1. The PEC and RP under
|apanese mtary
occupaton were not de facto
governments.
2. McArthurs procamaton
nvadated a
|udca proceedngs and |udgments of
Phppne Courts under the PEC and the
RP.
3. Lower courts have no |ursdcton to
contnue pendng |udca proceedngs wth
the absence of an enabng aw to grant
such authorty.
A wrt of mandamus was ssued to the
|udge orderng hm to take cognzance and
render fna |udgment of the case. "he
f#rst #ss$e nvoved was whether or not the
PEC and the RP were de facto
governments. And the SC hed that they
were by expoundng on the dfferent knds
of de facto governments (whch are sted
beow) and pontng out that a acts and
proceedngs of the PEC/RP (whch was
cassfed as a de facto government of the
second form) are good and vad.
1. Government that USURPS by
FORCE or BY
THE VOICE OF THE MA|ORITY the rghtfu
ega government.
2. Government of PARAMOUNT
FORCE.
3. Government estabshed by
the natve
nhabtants who rse n INSURRECTION
aganst the parent state.
The se%on& #ss$e revoved around
McArthurs procamaton. It dd not have
the effect of nvadatng and nufyng a
|udca proceedngs and |udgments of
Phppne Courts under the PEC and the
RP by vrtue of the prncpe of POSTLIMINY
n nternatona aw.
Postmnum s a prncpe n nternatona
aw whch consders vad, except n a very
few cases, the acts done by an nvader,
whch for one reason or another t s wthn
hs competence to do so, notwthstandng
the fact that the terrtory whch has been
occuped by hm comes agan n the power
of ts egtmate government or
soveregnty.
The last #ss$e was the queston of whether
or not an enabng aw was requred. It
snt. Conquest or coonzaton s mpotent
to amend aws. Laws reman unchanged
unt the new soveregn by a egsatve act
creates such change.
In e- (aturnino .ermu+e,
(19'6!
A awyer questons Artce 18 of proposed
1986 Consttuton regardng who the
provson refers to when t says Presdent
and Vce Presdent. The court dsmsses t
outrght for ack of |ursdcton and a cause
of acton.
Pettoner's aegaton of ambguty or
vagueness of the aforequoted provson s
manfesty gratutous, t beng a matter of
pubc record and common pubc
knowedge that the Consttutona
Commsson refers theren to ncumbent
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Presdent Corazon C. Aquno and Vce-
Presdent Savador H. Laure, and to no
other persons
Pettoners have no personaty to sue and
ther pettons state no cause of acton. For
the egtmacy of the Aquno government
s not a |ustcabe matter. It beongs to
the ream of potcs where ony the peope
of the Phppnes are the |udge. And the
peope have made the |udgment; they
have accepted the government of
Presdent Corazon C. Aquno whch s n
effectve contro of the entre country so
that t s not merey a de facto
government but n fact and aw a de |ure
government. Moreover, the communty of
natons has recognzed the egtmacy of
the present government. A the eeven
members of ths Court, as reorganzed,
have sworn to uphod the fundamenta aw
of the Repubc under her government.
In re- Letter o/ &sso0iate $usti0e
e1nate Puno
Ths s an admnstratve matter n the SC.
Puno was eevated n the senorty
rankngs of the CA from no. 12 to no. 5.
Ths, however, caused |aveana and
Campos to fe a moton for
reconsderaton. Puno countered by sayng
that Aquno had pedged that "no rght
provded under the 1973 Consttuton sha
be absent from the Freedom Consttuton"
and thus by vrtue of Secton 2 E.O. 33,
Puno can cam senorty. Ths was
debunked by the SC on the ground that a
revouton changes everythng because t
went n defance of the then exstng 1973
Consttuton. The core ssue at hand was
precsey WON the exstng ega order was
overthrown by the revoutonary
government. It was. The tte resstance
met by the new government, contro of
the state, appontment of key offcers n
the admnstraton, departure of offcas of
the prevous regme, and the revamp of
the mtary and |udcary sgnaed the
pont where the ega system had ceased
to be obeyed by the Fpno peope.
Estra+a v. Desierto
(2001!
Erap aeges that he s st the Presdent,
abet on-eave, where as Arroyo merey
cams to be Presdent. He sought to en|on
the respondent Ombudsman from
conductng any crmna compants
aganst hs offce unt after the term of hs
presdency was over and ony f egay
warranted. The f#rst #ss$e rased by the
respondents s that the case s a potca
queston and therefore outsde the
|ursdcton of the SC. To determne
whether or not the queston s potca,
the court ooks to the most authortatve
gudene n determnng such ssues:
|ustce Brennans words n the 1962 case
of Baker v. Carr. The Phppnes eadng
case s Tanada v. Cuenco, where ths
Court, through former Chef |ustce
Roberto Concepcon, hed that potca
questons refer:
"to those questons whch, under the
Consttuton, are to be decded by the
peope n ther soveregn capacty, or n
regard to whch fu dscretonary authorty
has been deegated to the egsatve or
executve branch of the government. It s
concerned wth ssues dependent upon
the wsdom, not egaty of a partcuar
measure."
The court hed that the Arroyo
government was not a revoutonary
government as compared to ts Aquno
counterpart. EDSA I nvoved extra-
consttutona exercse of peope power
revouton (and s thus a potca queston
and not sub|ect to |udca revew) whereas
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EDSA II provoked the resgnaton of the
sttng presdent whch resuted n the
successon of the vce presdent (whch s
ntra-consttutona and thus |ustcabe).
EDSA I overthrew the whoe government.
EDSA II sought to petton the government
for redress of grevances whch ony
affected the offce of the Presdent.
CO!(#I#%E!# &!D "I!I(#&!#
'%!C#IO!(
&CC'& v. C%GCO
ACCFA s beng sued by CUGCO because
of aeged voatons of a coectve
barganng agreement, dscrmnaton
aganst members, and refusa to bargan.
The CIR favored the companants but
ACCFA pettoned to the SC questonng
WON the CIR has |ursdcton over the case
dependng on WON ACCFA exercsed
governmenta or propretary functons.
The court rued that the mpementaton of
the and reform program of the
government accordng to Repubc Act No.
3844 s most certany a governmenta,
not a propretary, functon. The CIR has no
|ursdcton but nevertheess the coectve
barganng agreements must be enforced.
The ACA s a government offce or agency
engaged n governmenta, not propretary
functons. These functons may not be
strcty what Presdent Wson descrbed as
"consttuent" (as dstngushed from
"mnstrant"),4 such as those reatng to
the mantenance of peace and the
preventon of crme, those reguatng
property and property rghts, those
reatng to the admnstraton of |ustce
and the determnaton of potca dutes of
ctzens, and those reatng to natona
defense and foregn reatons. Under ths
tradtona cassfcaton, such consttuent
functons are exercsed by the State as
attrbutes of soveregnty, and not merey
to promote the wefare, progress and
prosperty of the peope - these etter
functons beng mnstrant he exercse of
whch s optona on the part of the
government.
The growng compextes of modern
socety, however, have rendered ths
tradtona cassfcaton of the functons of
government qute unreastc, not to say
obsoete. The areas whch used to be eft
to prvate enterprse and ntatve and
whch the government was caed upon to
enter optonay, and ony "because t was
better equpped to admnster for the
pubc wefare than s any prvate
ndvdua or group of ndvduas,"5
contnue to ose ther we-defned
boundares and to be absorbed wthn
actvtes that the government must
undertake n ts soveregn capacty f t s
to meet the ncreasng soca chaenges of
the tmes. Here as amost everywhere ese
the tendency s undoubtedy towards a
greater socazaton of economc forces.
Here of course ths deveopment was
envsoned, ndeed adopted as a natona
pocy, by the Consttuton tsef n ts
decaraton of prncpe concernng the
promoton of soca |ustce.
P&E!( P&#I&E
Gov. o/ P*il. Islan+s v. "onte +e
Pie+a+
(1916!
Contrbutons were coected durng the
Spansh Regme for the reef of the
vctms of an earthquake. Part of the
money was never dstrbuted and was
nstead deposted wth the defendant
bank. In an acton for ts recovery ater
fed by the government, the defendant
questoned the competence of the pantff
(PI government), contendng that the sut
coud be nsttuted ony by the ntended
benefcares themseves or by the hers of
the vctms. The ssue of concern here s
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WON the PI has the rght to fe a case n
behaf of ts ctzens. It does n ts capacty
as the guardan or )arens )atr#ae of the
peope.
(OVEEIG!#2
Elements of the State
Co )im C*an v. Val+e, #an )e* (194!
There was no change of soveregnty
durng the perod of |apanese occupaton.
Possess#on of so*ere#gnt+ remaned wth
the Amercans whe the e,er%#se of the
a%ts of so*ere#gnt+ beonged to the
begerent nvaders.
"a0ariola v. &sun0ion
(1992!
In a cv case of the CFI Leyte, |udge
Asuncon rued a partton of ots of one
deceased Francsco Reyes among
Macaroa (soe chd of Francscos frst
wfe) and the chdren from hs second
marrage. A year ater, the |udge bought
one of the ots he setted from a certan
Gaapon. Macaroa charges Asuncon wth
a compant of commttng "acts
unbecomng a |udge." The man ssues are
twofod: the frst s WON he voated
Artce 1491 (5) of the CC; and second s
WON he voated Artce 14 (1) & (5) of the
Code of Commerce.
The prohbton of the artce n the frst
ssue has aready been decded n recent
cases by reasonng of: ". . . for the
prohbton to operate, the sae or
assgnment of the property must take
pace durng the pendency of the tgaton
nvovng the property"
1
Thus, no voaton
of sad provson took pace. As for the
second regardng the voaton of the Code
of Commerce provson:
1
The Drector of Lands vs. Ababa, et a., |1979|;
Rosaro vda. de Lag vs. Court of Appeas, |1978|
Potca Law has been defned as that
branch of pubc aw whch deas wth the
organzaton and operaton of the
governmenta organs of the State and
defne the reatons of the state wth the
nhabtants of ts terrtory (Peope vs.
Perfecto). It may be recaed that potca
aw embraces consttutona aw, aw of
pubc corporatons, admnstratve aw
ncudng the aw on pubc offcers and
eectons. Specfcay, Artce 14 of the
Code of Commerce partakes more of the
nature of an admnstratve aw because t
reguates the conduct of certan pubc
offcers and empoyees wth respect to
engagng n busness; hence, potca n
essence.
Upon the transfer of soveregnty from
Span to the Unted States and ater on
from the Unted States to the Repubc of
the Phppnes, Artce 14 of the Spansh
Code of Commerce must be deemed to
have been abrogated because where
there s change of soveregnty, the
potca aws of the former soveregn,
whether compatbe or not wth those of
the new soveregn, are automatcay
abrogated, uness they are expressy re-
enacted by affrmatve act of the new
soveregn.
Thus, We hed n Roa vs. Coector of
Customs that:
"'By we-setted pubc aw, upon the
cesson of terrtory by one naton to
another, ether foowng a conquest or
otherwse, . . . those aws whch are
potca n ther nature and pertan to the
prerogatves of the former government
mmedatey cease upon the transfer of
soveregnty.'
2
"Whe muncpa aws of the newy
acqured terrtory not n confct wth the
aws of the new soveregn contnue n
2
Opnon, Atty. Gen., |uy 10, 1899
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force wthout the express assent or
affrmatve act of the conqueror, the
potca aws do not.
3
Lkewse, n Peope vs. Perfecto, ths Court
stated that: "It s a genera prncpe of the
pubc aw that on acquston of terrtory
the prevous potca reatons of the
ceded regon are totay abrogated."
There appears no enabng or affrmatve
act that contnued the effectvty of the
aforestated provson of the Code of
Commerce after the change of
soveregnty from Span to the Unted
States and then to the Repubc of the
Phppnes. Consequenty, Artce 14 of the
Code of Commerce has no ega and
bndng effect and cannot appy to the
respondent, then |udge of the Court of
Frst Instance, now Assocate |ustce of the
Court of Appeas.
u//1 v. C*ie/ o/ (ta//
(1946!
Ruffy, a provnca commander of the
Phppne Constabuary, nstead of
surrenderng to the |apanese forces,
dsbanded hs company, retreated to the
mountans and ed a guera unt. Leut.
Co. |urado, recognzed by the Unted
States Armed Forces, was sent to repace
Ruffy but was san by the atter and hs
companons. The same peope who ked
the repacng offcer cam that they were
not sub|ect to mtary aw at the tme
when the offense was commtted. -$t the
r$le s$s)en&#ng )ol#t#%al la.s onl+ affe%ts
the %#*#l#an #nha/#tants of the o%%$)#e&
terr#tor+ an& #s not #nten&e& to /#n& the
enem#es #n arms. Thus, members of the
armed forces contnued to be covered by
the Natona Defense Act, the Artces of
War, and other aws reatng to the armed
forces even durng the |apanese
occupaton. By the acceptance of the
3
Haeck's Int. Law, chap. 34, par. 14
pettoners appontments as offcers n the
Phppne Army they became amenabe to
the Artces of War.
Peralta v. Dire0tor o/ Prisons
(194!
Pettoner, a member of the Metropotan
Constabuary, was prosecuted for the
crme of robbery as defned by the
Natona Assemby of the so-caed
Repubc of the Phppnes. He was found
guty and sentenced to serve tme by the
Court of Speca and Excusve Crmna
|ursdcton created n sec. 1 of Ordnance
no. 7 promugated by the Presdent of the
Repubc. The petton for habeas corpus s
based on the ground that the Courts
exstence was vod ab nto because t
was created as a potca nstrumentaty
under the command of the |apanese
Impera Army; that the provsons of sad
ordnance voate hs consttutona rghts;
that the penates provded for are much
more severe than the RPC. SoGen s of
the opnon that the petton shoud be
granted because the Ordnance mentoned
n creatng sad court s "tnged wth
potca compexon", that the procedure
does not afford a far tra and voates
consttutona rght of accused persons
under a egtmate Consttuton. The court
s of the opnon that:
0s to the *al#&#t+ of the %reat#on of the
Co$rt of S)e%#al an& E,%l$s#*e Cr#m#nal
1$r#s&#%t#on /+ 2r&#nan%e No. 7, the ony
factor to be consdered s the authorty of
the egsatve power whch promugated
sad aw or ordnance. It s we estabshed
n Internatona Law that "The crmna
|ursdcton estabshed by the nvader n
the occuped terrtory fnds ts source
nether n the aws of the conquerng or
conquered state, - t s drawn entrey
from the aw marta as defned n the
usages of natons. The authorty thus
derved can be asserted ether through
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speca trbunas, whose authorty and
procedure s defned n the mtary code
of the conquerng state, or through the
ordnary courts and authortes of the
occuped dstrct." (Tayor, Internatona
Pubc Law, p. 598.)
The so-caed Repubc of the Phppnes,
beng a governmenta nstrumentaty of
the begerent occupant, had therefore
the power or was competent to create the
Court of Speca and Excusve Crmna
|ursdcton. No queston may arse as to
whether or not a court s of a potca
compexon, for t s mere governmenta
agency charged wth the duty of appyng
the aw to cases fang wthn ts
|ursdcton. Its |udgments and sentences
may be of a potca compexon or not
dependng upon the nature or character of
the aw so apped. There s no room for
doubt, therefore, as to the vadty of the
creaton of the court n queston.
"he *al#&#t+ of the senten%e rendered by
the Court of Speca and Excusve Crmna
|ursdcton whch mposes fe
mprsonment upon the heren pettoner,
depends upon the competence or power
of the begerent occupant to promugate
Act No. 65 whch punshes the crme of
whch sad pettoner was convcted.
It appears cear that t was wthn the
power and competence of the begerent
occupant to promugate, through the
Natona Assemby of the so-caed
Repubc of the Phppnes, Act No. 65 of
the sad Assemby, whch penazes the
crmes of robbery and other offenses by
mprsonment rangng from the maxmum
perod of the mprsonment prescrbed by
the aws and ordnances promugated by
the Presdent of the so-caed Repubc as
mnmum, to fe mprsonment or death as
maxmum. Athough these crmes are
defned n the Revsed Pena Code, they
were atered and penazed by sad Act No.
65 wth dfferent and heaver penates, as
new crmes and offenses demanded by
mtary necessty, ncdent to a state of
war, and necessary for the contro of the
country by the begerent occupant, the
protecton and safety of the army of
occupaton, ts support and effcency, and
the success of ts operatons.
The ast queston s the ega effect of the
reoccupaton of the Phppnes and
restoraton of the Commonweath
Government; that s, whether or not, by
the prncpe of postmny, the )$n#t#*e
senten%e .h#%h )et#t#oner #s no. ser*#ng
fell thro$gh or %ease& to /e *al#& from
that t#me.
We have aready hed n our recent
decson n the case of Co Km Cham vs.
Vadez Tan Keh and Dzon, supra, that a
|udgment of potca compexon of the
courts durng the |apanese regme, ceased
to be vad upon reoccupaton of the
sands by vrtue of the prncpe or rght of
postmnum. Appyng that doctrne to the
present case, the sentence whch
convcted the pettoner of a crme of a
potca compexon must be consdered
as havng ceased to be vad pso facto
upon the reoccupaton or beraton of the
Phppnes by Genera Dougas MacArthur.
&l0antara v. Dire0tor o/ Prisons
Pettoner was convcted of the crme of
ega dscharge of frearms. The CA
modfed the sentence from arresto mayor
to prson correccona. Pettoner
questons the vadty of the CA on the soe
ground that the court was a creaton of
the so-caed Repubc of the Phppnes
durng the |apanese mtary occupaton. In
Co Km Cham v. Vadez Tan Keh and
Dzon, the court rued that the RP and the
PEC were governments de facto and that
|udca acts were good and vad and
remaned good and vad after the
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restoraton of the Commonweath
Government. The CA that exstng durng
|apanese occupaton was the CA after the
restoraton. And even f the CA was a new
court, ts |udgments woud st reman
good and vad provded that they do not
have a potca compexon.
A puntve or pena sentence s sad to be
of a potca compexon when t penazes
ether a new act not defned n the
muncpa aws, or acts aready penazed
by the atter as a crme aganst the
egtmate government, but taken out of
the terrtora aw and penazed as new
offenses commtted aganst the
begerent occupant, ncdent to a state of
war and necessary for the contro of the
occuped terrtory and the protecton of
the army of the occuper. They are acts
penazed for pubc rather than prvate
reasons, acts whch tend, drecty or
ndrecty, to ad or favor the enemy and
are drected aganst the wefare, safety
and securty of the begerent occupant.
As exampes, the crmes aganst natona
securty, such as treason, esponage, etc.,
and aganst pubc order, such as
rebeon, sedton, etc., were crmes
aganst the Commonweath or Unted
States Government under the Revsed
Pena Code, whch were made crmes
aganst the begerent occupant.
(#&#E I""%!I#2
C3&&C#EI4&#IO! O' (%I#
.egosa v. C*airman5 P*il. Vet. &sso0.
(1970!
A veteran, Begosa, sufferng from
permanent dsabty was beng dened
what has been granted hm specfcay by
egsatve enactment (whch certany s
superor to any reguaton that may be
promugated by the Phppne Veterans
Admnstraton). Athough the respondent
reented, the amount reeased was far ess
than what the veteran was egay entted
to. He appeaed. The doctrne of state
mmunty cannot be nvoked by the PVA.
Where tgaton may have adverse
consequences on the pubc treasury,
whether n the dsbursements of funds or
oss of property, the pubc offca beng
tred cannot be hed abe by vrtue of
state mmunty. However, where the sut
aganst such a government offca had to
be nsttuted because of hs faure to
compy wth the duty mposed by statute
appropratng funds for the beneft of the
pantff, then the doctrne of state
mmunty cannot be apped.
epu6li0 v. 'eli0iano
(19'7!
Fecano aegedy owns a parce of and
through hs possesson of nformacon
possesora. But ths same and, by vrtue
of Procamaton No. 90 of Presdent Ramon
Magsaysay, became reserved for
settement purposes. Fecano seeks to
prove that hs ownershp of the and as
evdenced by hs nformacon s vad and
makes a cam to recover sad property.
However, the court rued that the state dd
not gve ts consent to be sued and thus
mmune from the compant. Athough the
procamaton stated that t sha be
"sub|ect to prvate rghts f any there be",
ths cannot be construed as an express
waver of mmunty.
Waver of mmunty, beng a derogaton of
soveregnty, w not be nferred ghty,
but must be construed n str#%t#ss#m# 3$r#s
4
.
4
STRICTISSIMI |URIS. The most strct rght or aw. In
genera, when a person receves an advantage, as
the grant of a cense, he s bound to conform
receves an advantage, as the grant of a cense, he
s bound to conform strcty to the exercse of the
rghts gven hm by t, and n case of a strcty to the
exercse of the rghts gven hm by t, and n case of
a dspute, t w be strcty construed.
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Moreover, the Procamaton s not a
egsatve act. The consent of the State to
be sued must emanate from statutory
authorty. Waver of State mmunty can
ony be made by an act of the egsatve
body.
&#IO!&LE 'O I""%!I#2
(an+ers v. Veri+iano
(19''!
Ross and Wyer, gameroom attendards,
are sung Sanders and Moreau (superors
of the attendants) for beous mputatons
commtted by the atter whch eventuay
cost them ther |obs. However, the court
rued that the auded acts were offca
and not persona and that the acts
pettoners are caed to account were
performed n the dscharge of ther offca
dutes.
Gven the offca character of the above-
descrbed etters, we have to concude
that the pettoners were, egay speakng,
beng sued as offcers of the Unted States
government. As they have acted on behaf
of that government, and wthn the scope
of ther authorty, t s that government,
and not the pettoners personay, that s
responsbe for ther acts.
The doctrne of state mmunty s
appcabe not ony to our own
government but aso to foregn states who
are sub|ect to the |ursdcton of our
courts.
The practca |ustfcaton for the doctrne,
as Homes put t, s that "there can be no
ega rght aganst the authorty whch
makes the aw on whch the rght
depends." In the case of foregn states,
the rue s derved from the prncpe of
the soveregn equaty of states whch
wsey admonshes that )ar #n )arem non
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