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What is a government?

7.

The determination of the political duties, privileges, and relations of citizens.

The agency or instrumentality through which the will of the State is formulated, expressed and realized.

Government of the Philippines The corporate governmental entity through which the functions of the government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authourity 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. (Sec. 2(1), Administrative Code of 1987)

What are the traditional functions of the government? Constituent - those which constitute the very bonds of society and are compulsory in nature Ministrant - those that are undertaken only by way of advancing the general interests of society, and are merely optional

Two instances where the government is required to exercise ministrant functions 1. that a government should do for the public welfare those things which private capital would not naturally undertake 2. that a government should do these things which by its very nature it is better equipped to administer for the public welfare than is any private individual or group of individuals

Bacani vs. NACOCO [G.R. No. L-9657, November 29,

1956]

FUNCTIONS OF THE GOVERNMENT; CONSTITUENT AND MINISTRANT. - To begin with, we state that the term "Government" may be defined as "that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them". This institution, when referring to the national government, has reference to what our Constitution has established composed of three great departments, the legislative, executive, and the judicial, through which the powers and functions of government are exercised. These functions are twofold: constituent and ministrant.

President Wilson enumerates the constituent functions as follows:

1. The keeping of order and providing for the protection of persons and property from violence and robbery.

2. The fixing of the legal relations between man 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 contract rights between individuals.

5. The definition and punishment of crime.

8. Dealings of the state with foreign powers: the preservation of the state from external danger or encroachment and the advancement of its international interests.'" (Malcolm, The Government of the Philippine Islands, p. 19.)

The most important of the ministrant functions are:

1. Public works

2. Public education

3. Public charity

4. Health and safety regulations, and

5. Regulations of trade and industry.

From the above we may infer that, strictly speaking, there are functions which our government is required to exercise to promote its objectives as expressed in our Constitution and which are exercised by it as an attribute of sovereignty, and those which it may exercise to promote merely the welfare, progress and prosperity of the people. To this latter class belongs the organization of those corporations owned or controlled by the government to promote certain aspects of the economic life of our people such as the National Coconut Corporation. These are what we call government-owned or controlled corporations which may take on the form of a private enterprise or one organized with powers and formal characteristics of a private corporations under the Corporation Law.

GOVERNMENT-OWNED AND CONTROLLED CORPORATIONS ARE NOT GOVERNMENT ENTITIES. - The question that now arises is: Does the fact that these corporations perform certain functions of government make them a part of the Government of the Philippines?

The answer is simple: they do not acquire that status for the simple reason that they do not come under the classification of municipal or public corporation. Take for instance the National Coconut Corporation. While it was organized with the purpose of "adjusting the coconut industry to a position independent of trade preferences in the United States" and of providing "Facilities for the better curing of copra products and the proper utilization of coconut by-products", a function which our government has chosen to exercise to promote the coconut industry, however, it was given a corporate power separate and distinct from our government, for it was made subject to the provisions of our Corporation Law in so far as its corporate existence and the powers that it may exercise are concerned (sections 2 and 4, Commonwealth Act No. 518). It

may sue and be sued in the same manner as any other private corporations, and in this sense it is an entity different from our government. As this Court has aptly said, "The mere fact that the Government happens to be a majority stockholder does not make it a public corporation" (National Coal Co. vs. Collector of Internal Revenue, 46 Phil., 586-587). "By becoming a stockholder in the National Coal Company, the Government divested itself of its sovereign character so far as respects the

transactions of the

Unlike the Government,

agency or instrumentality of government." (Government of the Philippine Islands vs. Springer, 50 Phil., 288.)

To recapitulate, we may mention that the term "Government of the Republic of the Philippines" used in section 2 of the Revised Administrative Code refers only to that government entity through which the functions of the government are exercised as an attribute of sovereignty, and in this are included those arms through which political authority is made effective whether they be provincial, municipal or other form of local government. These are what we call municipal corporations. They do not include government entities which are given a corporate personality separate and distinct from the government and which are governed by the Corporation Law. Their powers, duties and liabilities have to be determined in the light of that law and of their corporate charters. They do not therefore come within the exemption clause prescribed in section 16, Rule 130 of our Rules of Court.

"Public corporations are those formed or organized for the government of a portion of the State."

"'The generally accepted definition of a municipal corporation would only include organized cities and towns, and like organizations, with political and legislative powers for the local, civil government and police regulations of the inhabitants of the particular district included in the boundaries of the corporation.'

"In its more general sense the phrase 'municipal corporation' may include both towns and counties, and other public corporations created by government for political purposes. In its more common and limited signification, it embraces only incorporated villages, towns and cities.

"We may, therefore, define a municipal corporation in its historical and strict sense to be the incorporation, by the authority of the government, of the inhabitants of a particular place or district, and authorizing them in their corporate capacity to exercise subordinate specified powers of legislation and regulation with respect to their local and internal concerns. This power of local government is the distinctive purpose and the distinguishing feature of a municipal corporation proper." (Dillon, Municipal Corporations, 5th ed., Vol. I, p. 59.)

Philippine Virginia Tobacco Adm. vs. CIR [G.R. No. L- 32052, July 25, 1975]

THE PROMOTION OF GENERAL WELFARE IS A GOVERNMENT FUNCTION, REPUDIATION OF THE CONCEPT OF LAISSEZ FAIRE. - The growing complexities of modern society, however, have rendered this traditional classification of the functions of government quite unrealistic, not to say obsolete. 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 is any private individual or group of individuals,' continue to lose their well-defined boundaries and to be absorbed within activities that the government must undertake in its sovereign capacity if it is to meet the increasing social challenges of the

times. Here as almost everywhere else the tendency is undoubtedly towards a greater socialization of economic forces. Here of course this development was envisioned, indeed adopted as a national policy, by the Constitution itself in its declaration of principle concerning the promotion of social justice." Thus was laid to rest the doctrine in Bacani v. National Coconut Corporation, based on the Wilsonian classification of the tasks incumbent on government into constituent and ministrant in accordance with the laissez faire principle. That concept, then dominant in economics, was carried into the governmental sphere. He took pains to emphasize that what was categorized by him as constituent functions had its basis in a recognition of what was demanded by the "strictest [concept of] laissez faire, [as they] are indeed the very bonds of society." The other functions he would minimize as ministrant or optional.

The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of economic and political theory, are of the past. The modern period has shown a widespread belief in the amplest possible demonstration of government activity. The 1935 Constitution, as was indicated earlier, continued that approach. As noted in Edu v. Ericta: "What is more, to erase any doubts, the Constitutional Convention saw to it that the concept of laissez-faire was rejected. It entrusted to our government the responsibility of coping with social and economic problems with the commensurate power of control over economic affairs. Thereby it could live up to its commitment to promote the general welfare through state action." Nor did the opinion in Edu stop there: "To repeat, our Constitution which took effect in 1935 erased whatever doubts there might be on that score. Its philosophy is

a repudiation of laissez-faire. One of the leading members of the Constitutional Convention, Manuel A. Roxas, later the first President of the Republic, made it clear when he disposed of the objection of Delegate Jose Reyes of Sorsogon, who noted the 'vast extensions in the sphere of governmental functions' and the 'almost unlimited power to interfere in the affairs of industry and agriculture as well as to compete with existing business' as 'reflections of the fascination exerted by [the then] current tendencies' in other jurisdictions. He spoke thus: 'My answer is that this constitution has a definite and well defined philosophy, not

only political but social and

Constitution the gentlemen will find declarations of economic policy they are there because they are necessary to safeguard the interest and welfare of the Filipino people because we believe that the days have come when in self-defense, a nation may provide in its constitution those safeguards, the patrimony, the freedom to grow, the freedom to develop national aspirations and national interests, not to be hampered by the artificial boundaries which a constitutional provision automatically imposes."

If in this

Parens Patriae (Parent of the People)

Literally parent of the people. As such, the government may act as guardian of the rights of people who may be disadvantaged or are suffering from some disability or misfortune.

Gov. of the Philippine Islands vs. Monte de Piedad [G.R. No. 9959, December 13, 1916]

1.

that which takes possession, or control of, or usurps by force or by the voice of the majority, the rightful legal government against the will of the latter;

The earthquake fund was the result or the accumulation of a great number of small contributions. The names of the contributors do not appear in the record. Their whereabouts are unknown. They parted with the title to their respective contributions. The beneficiaries, consisting of the original sufferers and their heirs, could have been ascertained. They are quite numerous also. And no doubt a large number of the original sufferers have died, leaving various heirs. It would be impracticable for them to institute an action or actions either individually or collectively to recover the $80,000. The only course that can be satisfactorily pursued is for the Government to against assume control of the fund and devote it to the object for which it was originally destined.

The impracticability of pursuing a different course, however, is not the true ground upon which the right of the Government to maintain the action rests. The true ground is that the money being given to a charity became, in a measure, public property, only applicable, it is true, to the specific purposes to which it was intended to be devoted, but within those limits consecrated to the public use, and became part of the public resources for promoting the happiness and welfare of the Philippine Government. (Mormon Church vs. U. S., supra.) To deny the Government's right to maintain this action would be contrary to sound public policy, as tending to discourage the prompt exercise of similar acts of humanity and Christian benevolences in like instances in the future.

Different Types of Government

Presidential – there is separation of executive and legislative powers (the first is lodged in the President, while the second is vested in the Congress) Parliamentary – there is fusion of both the executive and legislative powers in Parliament, although the actual exercise of the executive powers is vested in a Prime Minister who is chosen by, and accountable to, Parliament.

Unitary – single, centralized government, exercising powers over both the internal and external affairs of the State Federal – consists of autonomous state (local) government units merged into a single State, with the national government exercising a limited degree of power over the domestic affairs but generally full direction of the external affairs of the State.

De Jure – government of right; a government established according to the Constitution of the State, and lawfully entitled to recognition and supremacy and the administration of the State but is actually ousted from power or control. It is the true and lawful government De facto – that government which unlawfully gets the possession and control of the rightful legal government and maintains itself there by force and arms against the will of the rightful legal government, and claims to exercise the powers thereof. It is a government of fact.

3 types of de facto government

2. that which is established by the inhabitants of the territory who rise in insurrection against the parent state;

3. Government of Paramount Force - that which is established by the invading military forces of an enemy who occupy a territory in the course of war.

There can be a de jure without a de facto but there can never be a de facto without a de jure since de facto must always usurp

SOVEREIGNTY

The supreme and uncontrollable power inherent in a State by which that State is governed.

Characteristics:

Permanence

Exclusiveness

Completeness

Absoluteness

Indivisibility

Inalienability

Imprescriptibility

Can we say embassies are foreign soil?

No. Embassies are granted primary jurisdiction only. People vs. Gozo [G.R. No. L-36409, October 26, 1973]

SOVEREIGNTY IS COMPREHENSIVE, BUT ITS EXERCISE MAY BE RESTRICTED. - Philippine Government merely consents that the United States exercise jurisdiction in certain cases.

The consent was given purely as a matter of comity, courtesy, or expediency.

The Philippine Government has not abdicated its sovereignty over the bases as part of the Philippine territory or divested itself completely of jurisdiction over offenses committed therein. Under the terms of the treaty, the United States Government has prior or preferential but not exclusive jurisdiction of such offenses. The Philippine Government retains not only jurisdictional rights not granted, but also all such ceded rights as the United States Military authorities for reasons of their own decline to make use of.

"Nothing is better settled than that the Philippines being independent and sovereign, its authority may be exercised over its entire domain. There is no portion thereof that is beyond its power. Within its limits, its decrees are supreme, its commands paramount. Its laws govern therein, and everyone to whom it applies must submit to its terms. That is the extent of its jurisdiction, both territorial and personal. Necessarily, likewise, it has to be exclusive. If it were not thus, there is a diminution of its sovereignty."

principle of auto-limitation: "It is to be admitted that any state may, by its consent, express or implied, submit to a restriction of its sovereign rights. There may thus be a curtailment of what otherwise is a power plenary in character. That is the concept of sovereignty as auto- limitation, which, in the succinct language of Jellinek, 'is the property of a state-force due to which it has the exclusive capacity of legal self-determination and self-restriction.' A state then, if it chooses to, may refrain from the exercise of what otherwise is illimitable competence."

It is not precluded from allowing another power to participate in the exercise of jurisdictional right over certain portions of its territory. If it does so, it by no means follows that such areas become impressed with an alien character. They retain their status as native soil. They are still subject to its authority. Its jurisdiction may be diminished, but it does not disappear. So it is with the bases under lease to the American armed forces by virtue of the military bases agreement of 1947. They are not and cannot be foreign territory."

What type of government was established during the Japanese Occupation?

Government of Paramount Force Indicators:

1. Established by active military presence

2. Obeyed in civil matters by private citizens

What happens to sovereignty during belligerent occupation? IT REMAINS. What is suspended is the exercise of acts of sovereignty.

Co Kim Cham vs. Valdez Tan Keh [G.R. No. L-5a, November 16, 1945] DURING BELLIGERENT OCCUPATION, JUDICIAL DECISIONS RENDERED BY THE INVADER CONTINUE ITS FORCE AND EFFECT EVEN AFTER THE CESSATION OF INVASION. the provisions of the Hague Conventions which imposes upon a belligerent occupant the duty to continue the courts as well as the municipal laws in force in the country unless absolutely prevented, in order to reestablish and insure "I'ordre et la vie publice," that is, the public order and safety, and the entire social and commercial life of the country, were inserted, not for the benefit of the invader, but for the protection and benefit of the people or inhabitants of the occupied territory and of those not in the military service, in order that the ordinary pursuits and business of society may not be unnecessarily deranged.

As a necessary consequence of such occupation and domination, the political relations of its people to their former government are, for the time being, severed. But for their protection and benefit, and the protection and benefit of others not in the ordinary pursuits and business of society may not be unnecessarily deranged, the municipal laws, that is, such as affect private rights of persons and property and provide for the punishment of crime, are generally allowed to continue in force, and to be administered by the ordinary tribunals as they

were administered before the occupation. They are considered as continuing, unless suspended or superseded by the occupying belligerent.”

The fact that the belligerent occupant is a treacherous aggressor, as Japan was, does not, therefore, exempt him from complying with said precepts of the Hague Conventions, nor does it make null and void the judicial acts of the courts continued by the occupant in the territory occupied. To deny validity to such judicial acts would benefit the invader or aggressor, who is presumed to be intent upon causing as much harm as possible to the inhabitants or nationals of the enemy's territory, and prejudice the latter; it would cause more suffering to the conquered and assist the conqueror or invader in realizing his nefarious design; in fine, it would result in penalizing the nationals of the occupied territory, and rewarding the invader or occupant for his acts of treachery and aggression.

As the said judicial acts which apply the municipal laws, that is, such as affect private rights or persons and property and provide for the punishment of crimes, are good and valid even after occupation has ceased, although it is true that no crucial instances exist to show that, were they reversed or invalidated by the restored or legitimate government, international wrong would be committed, it is nonetheless true and evident that by such abrogation national wrong would be caused to the inhabitants or citizens of the legitimate government. According to the law of nations and Wheaton himself, said judicial acts are legal and valid before and after the occupation has ceased and the legitimate government has been restored. As there are vested rights which have been acquired by the parties by virtue of such judgments, the restored government or its representative cannot reverse or abrogate them without causing wrong or injury to the interested parties, because such reversal would deprive them of their properties without due process of law.

Does the suspension of political laws apply to ALL political laws? No.

LAW ON TREASON, THOUGH POLITICAL IN NATURE, IS NOT SUSPENDED DURING BELLIGERENT OCCUPATION. Considering that the absolute and permanent allegiance of the inhabitants of a territory occupied by the enemy to their legitimate government or sovereign is not abrogated or severed by the enemy occupation, because the sovereignty of the government or sovereign de jure is not transferred thereby to the occupier and if it is not transferred to the occupant it must necessarily remain vested in the legitimate government; that the sovereignty vested in the titular government (which is the supreme power which governs a body politic or society which constitute the state) must be distinguished from the exercise of the rights inherent thereto, and may be destroyed, or severed and transferred to another, but it cannot be suspended because the existence of sovereignty cannot be suspended without putting it out of existence or divesting the possessor thereof at least during the so-called period of suspension; that what may be suspended is the exercise of the rights of sovereignty with

the control and government of the territory occupied by the enemy passes temporarily to the occupant; that the subsistence of the sovereignty of the legitimate government in a territory occupied by the military forces of the enemy during the war, 'although the former is in fact prevented from exercising the supremacy over them' is one of the 'rules of international law of our times';

as a corollary of the conclusion that the sovereignty itself is not suspended and subsists during the enemy occupation, the allegiance of the inhabitants to their legitimate government or sovereign subsists, and therefore there is no such thing as suspended allegiance, the basic theory on which the whole fabric of the petitioner's contention rests

Considering that even adopting the words 'temporary allegiance,' as descriptive of the relations borne by the inhabitants of the territory occupied by the enemy toward the military government established over them, such allegiance may, at most, be considered similar to the temporary allegiance which a foreigner owes to the government or sovereign of the territory wherein he resides in return for the protection he receives as above described, and does not do away with the absolute and permanent allegiance which the citizen residing in a foreign country owes to his own government or sovereign; that just as a citizen or subject of a government or sovereign may be prosecuted for and convicted of treason committed in a foreign country, in the same way an inhabitant of a territory occupied by the military forces of the enemy may commit treason against his own legitimate government or sovereign if he adheres to the enemies of the latter by giving them aid comfort; and that if the allegiance of a citizen or subject to his government or sovereign is nothing more than obedience to its laws in return for the protection he receives, it would necessarily follow that a citizen who resides in a foreign country or state would, on one hand, ipso facto acquire the citizenship thereof since he has to obey, with certain exceptions, the laws of that country which enforce public order and regulate the social and commercial life, in return for the protection he receives, and would, on the other hand, lose his original citizenship, because he would not be bound to obey most of the laws of his own government or sovereign, and would not receive, while in a foreign country, the protection he is entitled to in his own;

as a corollary of the suspension of the exercise of rights of sovereignty by the legitimate government in the territory occupied by the enemy military forces, because the authority of the legitimate power to govern has passed into the hands of the occupant, the political laws which prescribe the reciprocal rights, duties and obligation of government and citizens, are suspended or in abeyance during military occupation (Co Kim Cham vs. Valdez Tan Keh and Dizon, supra), for the only reason that as they exclusively bear relation to the ousted legitimate government, they are inoperative or not applicable to the government established by the occupant; that the crimes against national security, such as treason and espionage, inciting to war, correspondence with hostile country, flight to enemy's country, as well as those against public order, such as rebellion, sedition, and disloyalty, illegal possession of firearms, which are of political complexion because they bear relation to, and are penalized by our Revised Penal Code as

crimes against the legitimate government, are also suspended or become inapplicable as against the occupant, because they can not be committed against the latter; and that, while the offenses against public order to be preserved by the legitimate government were inapplicable as offenses against the invader for the reason above stated, unless adopted by him, were also ill operative as against the ousted government for the latter was not responsible for the preservation of the public order in the occupied territory, yet article 114 of the said Revised Penal Code, was applicable to treason committed against the national security of the legitimate government, because the inhabitants of the occupied territory were still bound by their allegiance to the latter during the enemy occupation;

Although the military occupant is enjoined to respect or continue in force, unless absolutely prevented by the circumstances, those laws that enforce public order and regulate the social and commercial life of the country, he has, nevertheless, all the powers of a de facto government and may, at his pleasure, either change the existing laws or make new ones when the exigencies of the military service demand such action, that is, when it is necessary for the occupier to do so for the control of the country and the protection of his army, subject to the restrictions or limitations imposed by the Hague Regulations, the usages established by civilized nations, the laws of humanity and the requirements of public conscience ( Peralta vs. Director of Prisons, supra; 1940 United States Rules of Land Warfare 76, 77); and that, consequently, all acts of the military occupant dictated within these limitations are obligatory upon the inhabitants of the territory, who are bound to obey them, and the laws of the legitimate government which have not been adopted, as well and those which, though continued in force, are in conflict with such laws and orders of the occupier, shall be considered as suspended or not in force and binding upon said inhabitants;

Since the preservation of the allegiance or the obligation of fidelity and obedience of a citizen or subject to his government or sovereign does not demand from him a positive action, but only passive attitude or forbearance from adhering to the enemy by giving the latter aid and comfort, the occupant has no power, as a corollary of the preceding consideration, to repeal or suspend the operation of the law of treason, essential for the preservation of the allegiance owed by the inhabitants to their legitimate government, or compel them to adhere and give aid and comfort to him; because it is evident that such action is not demanded by the exigencies of the military service or not necessary for the control of the inhabitants and the safety and protection of his army, and because it is tantamount to practically transfer temporarily to the occupant their allegiance to the titular government or sovereign; and that, therefore, if an inhabitant of the occupied territory were compelled illegally by the military occupant, through force, threat or intimidation, to give him aid and comfort, the former may lawfully resist and die if necessary as a hero, or submit thereto without becoming a traitor;

Adoption of the petitioner's theory of suspended allegiance would lead to disastrous consequences for small and weak nations or states, and would be repugnant to the laws of humanity and requirements of public conscience, for it would allow invaders to legally recruit or enlist the Quisling

inhabitants of the occupied territory to fight against their own government without the latter incurring the risk of being prosecuted for treason, and even compel those who are not to aid them in their military operation against the resisting enemy forces in order to completely subdue and conquer the whole nation, and thus deprive them all of their own independence or sovereignty — such theory would sanction the action of invaders in forcing the people of a free and sovereign country to be a party i n the nefarious task of depriving themselves of their own freedom and independence and repressing the exercise by them of their own sovereignty; in other words, to commit a political suicide.

What happens to the governmental acts of the belligerent government? Acts which are contrary to those of the original government are void.

Municipal laws which are inconsistent with those of the occupied territory require a proclamation to be inoperative.

Ruffy vs. Chief of Staff [G.R. No. L-533, August 20, 1946] THE SUSPENSION OF POLITICAL LAWS DURING BELLIGERENT OCCUPATION DOES NOT APPLY TO THE ENEMIES IN ARMS. The rule invoked by counsel, namely, that laws of political nature or affecting political relations are considered superseded or in abeyance during the military occupation, is intended for the governing of the civil inhabitants of the occupied territory. It is not intended for and does not bind the enemies in arms. This is self-evident from the very nature of things. The paradox of a contrary ruling should readily manifest itself. Under the petitioners' theory the forces of resistance operating in an occupied territory would have to abide by the outlawing of their own existence. They would be stripped of the very lifeblood of an army, the right and the ability to maintain order and discipline within the organization and to try the men guilty of breach thereof.

THE DOCTRINE OF STATE IMMUNITY State Immunity constitutional in origin? No. Under our Constitution the principle of immunity of the government from suit is expressly provided in Article XVI, Section 3. The principle is based on the very essence of sovereignty, and on the practical ground that there can be no legal right as against the authority that makes the law on which the right depends. However it may be sued if it gives its consent, whether express or implied.

Sociological Basis: Propensity of people to litigate, waste of resources

INSTANCES OF SUITS AGAINST THE STATE. - Some instances when a suit against the State is proper are:

(1) When the Republic is sued by name; (2) When the suit is against an unincorporated government agency; (3) When the suit is on its face against a government officer but the case is such that ultimate liability will belong not to the officer but to the government.

Republic vs. Sandoval

While the Republic in this case is sued by name, the ultimate liability does not pertain to the government. Although the military officers and personnel, then party defendants, were discharging their official functions when the incident occurred, their functions ceased to be official the moment they exceeded their authority. Based on the Commission findings, there was lack of justification by the government forces in the use of firearms. Moreover, the members of the police and military crowd dispersal units committed a prohibited act under B.P. Blg. 880 as there was unnecessary firing by them in dispersing the marchers.

While it is true that nothing is better settled than the general rule that a sovereign state and its political subdivisions cannot be sued in the courts except when it has given its consent, it cannot be invoked by both the military officers to release them from any liability, and by the heirs and victims to demand indemnification from the government. The principle of state immunity from suit does not apply, as in this case, when the relief demanded by the suit requires no affirmative official action on the part of the State nor the affirmative discharge of any obligation which belongs to the State in its political capacity, even though the officers or agents who are made defendants claim to hold or act only by virtue of a title of the state and as its agents and servants. This Court has made it quite clear that even a "high position in the government does not confer a license to persecute or recklessly injure another."

THE STATE IMMUNITY IS NOT WAIVED ONLY FOR THE REASON THAT THE PRESIDENT CREATED A COMMISSION TO INVESTIGATE THE INCIDENT, OR BY THE PRESIDENT’S ACT OF JOINING A RALLY OF THE COMPLAINANTS. In effect, whatever may be the findings of the Commission, the same shall only serve as the cause of action in the event that any party decides to litigate his/her claim. Therefore, the Commission is merely a preliminary venue. The Commission is not the end in itself. Whatever recommendation it makes cannot in any way bind the State immediately, such recommendation not having become final and executory. This is precisely the essence of it being a fact-finding body.

Secondly, whatever acts or utterances that then President Aquino may have done or said, the same are not tantamount to the State having waived its immunity from suit. The President's act of joining the marchers, days after the incident, does not mean that there was an admission by the State of any liability. In fact to borrow the words of petitioners (Caylao group), "it was an act of solidarity by the government with the people". Moreover, petitioners rely on President Aquino's speech promising that the government would address the grievances of the rallyists. By this alone, it cannot be inferred that the State has admitted any liability, much less can it be inferred that it has consented to the suit.

Although consent to be sued may be given impliedly, still it cannot be maintained that such consent was given considering the circumstances obtaining in the instant case.

Sanders vs. Veridiano ACTS COMMITTED BY THE OFFICERS IN THEIR OFFICIAL CAPACITY ARE COVERED BY STATE

IMMUNITY. - It is stressed at the outset that the mere allegation that a government functionary is being sued in his personal capacity will not automatically remove him from the protection of the law of public officers and, if appropriate, the doctrine of state immunity. By the same token, the mere invocation of official character will not suffice to insulate him from suability and liability for an act imputed to him as a personal tort committed without or in excess of his authority. These well-settled principles are applicable not only to the officers of the local state but also where the person sued in its courts pertains to the government of a foreign state, as in the present case.

THE DOCTRINE OF STATE IMMUNITY APPLIES TO FOREIGN STATES SUED IN THIS JURISDICTION. There should be no question by now that such complaint cannot prosper unless the government sought to be held ultimately liable has given its consent to be sued. So we have ruled not only in Baer but in many other decisions where we upheld the doctrine of state immunity as applicable not only to our own government but also to foreign states sought to be subjected to the jurisdiction of our courts.

The practical justification for the doctrine, as Holmes put it, is that "there can be no legal right against the authority which makes the law on which the right depends." In the case of foreign states, the rule is derived from the principle of the sovereign equality of states which wisely admonishes that par in parem non habet imperium and that a contrary attitude would "unduly vex the peace of nations." Our adherence to this precept is formally expressed in Article II, Section 2, of our Constitution, where we reiterate from our previous charters that the Philippines "adopts the generally accepted principles of international law as part of the law of the land.

par in parem non habet imperium (meaning, an equal has no authority over an equal)

How can foreign states invoke state immunity?

Holy See vs. Rosario PROCEDURE IN INVOKING STATE IMMUNITY BY FOREIGN STATES. - In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court that said defendant is entitled to immunity.

In the United States, the procedure followed is the process of "suggestion," where the foreign state or the international organization sued in an American court requests the Secretary of State to make a determination as to whether it is entitled to immunity. If the Secretary of State finds that the defendant is immune from suit, he, in turn, asks the Attorney General to submit to the court a "suggestion" that the defendant is entitled to immunity. In England, a similar procedure is followed, only the Foreign Office issues a certification to that effect instead of submitting a "suggestion"

In the Philippines, the practice is for the foreign government or the international organization to first secure an executive endorsement of its claim of sovereign or diplomatic immunity.

But how the Philippine Foreign Office conveys its endorsement to the courts varies. In International Catholic Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment, informing the latter that the respondent- employer could not be sued because it enjoyed diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to make, in behalf of the Commander of the United States Naval Base at Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied the "suggestion" in a Manifestation and Memorandum as amicus curiae.

In the Philippines there is no formal procedure

Forms of Express Consent EXPRESS WAIVER OF IMMUNITY MUST BE THROUGH LEGISLATIVE ACT. Waiver of immunity, being a derogation of sovereignty, will not be inferred lightly, but must be construed in strictissimi juris. Moreover, the Proclamation is not a legislative act. The consent of the State to be sued must emanate from statutory authority. Waiver of State immunity can only be made by an act of the legislative body. (Republic vs. Feliciano)

What is Act 3083? The general law waiving the immunity of the state from suit is found in Act No. 3083, under which the Philippine government "consents and submits to be sued upon any moneyed claim involving liability arising from contract, express or implied, which could serve as a basis of civil action between private parties."

Nature of the Contract RESTRICTIVE THEORY OF STATE IMMUNITY. - There is no question that the United States of America, like any other state, will be deemed to have impliedly waived its non-suability if it has entered into a contract in its proprietary or private capacity. It is only when the contract involves its sovereign or governmental capacity that no such waiver may be implied.

it has been necessary to distinguish them — between sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that State immunity now extends only to acts jure imperii.

The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a State may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. It does not apply where the contract relates to the exercise of its sovereign functions. In this case the projects are an integral part of the naval base which is devoted to the defense of both the United States and the Philippines, indisputably a function of the government of

the highest order; they are not utilized for nor dedicated to commercial or business purposes.

TWO CONFLICTING CONCEPTS OF SOVEREIGN IMMUNITY

classical or absolute theory states that a sovereign cannot, without its consent, be made a respondent in the courts of another sovereign.

According to the newer or restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure gestionis.

Why is State immunity often called the royal prerogative of dishonesty? The doctrine is sometimes derisively called "the royal prerogative of dishonesty" because of the privilege it grants the state to defeat any legitimate claim against it by simply invoking its non-suability. (US vs. Guinto)

Can the doctrine of state immunity be used to perpetrate injustice? No. In Amigable vs. Cuenca If the constitutional mandate that the owner be compensated for property taken for public use were to be respected, as it should, then a suit of this character should not be summarily dismissed. The doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen. It is not too much to say that when the government takes any property for public use, which is conditioned upon the payment of just compensation, to be judicially ascertained, it makes manifest that it submits to the jurisdiction of a court. There is no thought then that the doctrine of immunity from suit could still be appropriately invoked."

TYPES OF IMPLIED CONSENT

Consent is implied when the state enters into a contract or it itself commences litigation.

Republic vs. Sandiganbayan. STATE IMPLIEDLY WAIVES ITS IMMUNITY WHEN IT COMMENCES LITIGATION. So, too, the PCGG's postulation that none of

its members may be "required to testify or produce evidence in

any judicial

official cognizance," has no application to a judicial proceeding it has itself initiated. As just suggested, the act of bringing suit must entail a waiver of the exemption from giving evidence; by bringing suit it brings itself within the operation and scope of all the rules governing civil actions, including the rights and duties under the rules of discovery. Otherwise, the absurd would have to be conceded, that while the parties it has impleaded as defendants may be required to "disgorge all the facts" within their knowledge and in their possession, it may not itself be subject to a like compulsion.

proceeding concerning matters within its

The State is, of course, immune from suit in the sense that it cannot, as a rule, be sued without its consent. But it is axiomatic that in filing an action, it divests itself of its

sovereign character and sheds its immunity from suit, descending to the level of an ordinary litigant.

By taking the initiative in an action against the private parties, the state surrenders its privileged position and comes down to the level of the defendant. The latter automatically acquires, within certain limits, the right to set up whatever claims and other defenses he might have against the state

Difference of suability based on the performance of

proprietary functions and suability based on the entering onto

a contract in proprietary capacity.

Suability based on the performance of proprietary functions - When the government enters into a contract, it is deemed to have descended to the level of the other contracting party and divested of its sovereign immunity from suit with its implied consent.

Suability based on the entering into a contract in proprietary capacity - the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such an act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in the activity in the regular course of business. If the foreign state is not engaged regularly in a business or trade, the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit.

SUABILITY IS NOT SYNONYMOUS WITH LIABILITY.

"By consenting to be sued a state simply waives its immunity from suit. It does not thereby concede its liability to plaintiff, or create any cause of action in his favor, or extend its liability to any cause not previously recognized. It merely gives a remedy to enforce a preexisting liability and submits itself to the jurisdiction of the court, subject to its right to interpose any lawful defense."

Suability depends on the consent of the state to be sued, liability on the applicable law and the established facts. The circumstance that a state is suable does not necessarily mean

that it is liable; on the other hand, it can never be held liable if

it does not first consent to be sued. Liability is not conceded

by the mere fact that the state has allowed itself to be sued.

When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable.

The government may be held liable under this rule only if it first allows itself to be sued through any of the accepted forms of consent. (Festejo vs. Fernando)

Up to what stage does the waiver operates? "The universal rule that where the State gives its consent to be sued by private parties either by general or special law, it may limit claimant's action `only up to the completion of proceedings anterior to the stage of execution' and that the power of the Courts ends when the judgment is rendered

Why does execution need another waiver? Since government funds and properties may not be seized under writs of execution or garnishment to satisfy such judgments. It is based on obvious considerations of public policy. Disbursements of public funds must be covered by the corresponding appropriation as required by law. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated by law.

Exception: Public funds may be garnished when specifically earmarked for the judgment.

City of Caloocan vs. Judge Allarde [G.R. No. 107271, September 10, 2003]

GOVERNMENT FUNDS APPROPRIATED FOR A PURPOSE MAY BE GARNISHED TO SATISFY THAT PURPOSE. - However, the rule is not absolute and admits of a well- defined exception, that is, when there is a corresponding appropriation as required by law. Otherwise

stated, the rule on the immunity of public funds from seizure

or garnishment does not apply where the funds sought to be

levied under execution are already allocated by law specifically for the satisfaction of the money judgment against the government. In such a case, the monetary judgment may be legally enforced by judicial processes

A vs B. B won; B has money in a government agency. May

such money be garnished? No. In that case the government becomes a forced intervenor. What can be done directly cannot be done indirectly. PNB vs Pabalan.

Difference between unincorporated and incorporporated agency? A GOVERNMENT OWNED AND CONTROLLED CORPORATION HAS DISTINCT PERSONALITY OF ITS OWN; FUNDS OF THE CORPORATE ENTITY MAY BE PROCEEDED AGAINST. (PNB vs Pabalan)

GOVERNMENT OWNED AND CONTROLLED CORPORATION HAS A SEPARATE PERSONALITY INDEPENDENT OF THE GOVERNMENT, AND THUS, THE QUESTION OF SUABILITY MAY BE DETERMINED FROM ITS CHARTER. - It is not

necessary to write an extended dissertation on whether or not the NPC performs a governmental function with respect to the management and operation of the Angat Dam. It is sufficient

to say that the government has organized a private corporation,

put money in it and has allowed it to sue and be sued in any court under its charter. As a government owned and controlled corporation, it has a personality of its own, distinct and separate from that of the Government.

What if a GOCC is incorporated under the Corporation Code but its AOI does not provide that it can be sued, can the GOCC be sued? YES. 1) Applying the Corporation Code.

2) It is still an entity with a personality separate and distinct from the government

Municipal Corporations the incorporation, by the authority of the government, of the inhabitants of a particular place or district, and authorizing them in their corporate capacity to exercise subordinate specified powers of legislation and regulation with respect to their local and internal concerns. This power of local government is the distinctive purpose and the distinguishing feature of a municipal corporation proper."

Section 22. Corporate Powers. -

(a) Every local government unit, as a corporation, shall have the following powers:

xxx

(2) To sue and be sued;

xxx

Unincorporated – inquire into the functions of the corporation

Bureau of Printing vs. Bureau of Printing Employees Ass. [G.R. No. L-15751, January 28, 1961]

GOVERNMENTAL ENTITIES, THOUGH INCEDENTALLY PERFORMING PROPRIETARY FUNCTIONS, ARE ENTITLED TO STATE IMMUNITY. - The Bureau of Printing is an office of the Government created by the Administrative Code of 1916 (Act No. 2657).

As such instrumentality of the Government, it operates under the direct supervision of the Executive Secretary, Office of the President, and is "charged with the execution of all printing and binding, including work incidental to those processes, required by the National Government and such other work of the same character as said Bureau may, by law or by order of the (Secretary of Finance) Executive Secretary, be authorized

to undertake

corporate existence, and its appropriations are provided for in the General Appropriations Act. Designed to meet the printing

needs of the Government, it is primarily a service bureau and is obviously, not engaged in business or occupation for pecuniary profit.

" (Sec. 1644, Rev. Adm. Code.) It has no

Indeed, as an office of the Government, without any corporate or juridical personality, the Bureau of Printing cannot be sued. (Sec. 1, Rule 3, Rules of Court.) Any suit, action or proceeding against it, if it were to produce any effect, would actually be a suit, action or proceeding against the Government itself, and the rule is settled that the Government cannot be sued without its consent, much less over its objection. (See Metran vs. Paredes, 45 Off. Gaz., 2835; Angat River Irrigation System, et al. vs. Angat River Workers' Union, et al., G.R. Nos. L-10943-44, December 28, 1957).

It is true, as stated in the order complained of, that the Bureau of Printing receives outside jobs and that many of its employees are paid for overtime work on regular working days and on holidays, but these facts do not justify the conclusion that its functions are "exclusively proprietary in nature." Overtime work in the Bureau of Printing is done only when the interest of the service so requires (sec. 566, Rev.

Adm. Code). As a matter of administrative policy, the overtime compensation may be paid, but such payment is discretionary with the head of the Bureau depending upon its current appropriations, so that it cannot be the basis for holding that the functions of said Bureau are wholly proprietary in character. Anent the additional work it executes for private persons, we find that such work is done upon request, as distinguished from those solicited, and only "as the requirements of Government work will permit" (sec. 1654, Rev. Adm. Code), and "upon terms fixed by the Director of Printing, with the approval of the Department Head" (sec. 1665, id.). As shown by the uncontradicted evidence of the petitioners, most of these works consist of orders for greeting cards during Christmas from government officials, and for printing of checks of private banking institutions. On those greeting cards, the Government seal, of which only the Bureau of Printing is authorized to use, is embossed, and on the bank checks, only the Bureau of Printing can print the reproduction of the official documentary stamps appearing thereon. The volume of private jobs done, in comparison with government jobs, is only one-half of 1 percent, and in computing the costs for work done for private parties, the Bureau does not include profit, because it is not allowed to make any. Clearly, while the Bureau of Printing is allowed to undertake private printing jobs, it cannot be pretended that it is thereby an industrial or business concern. The additional work it executes for private parties is merely incidental to its function, and although such work may be deemed proprietary in character, there is no showing that the employees performing said proprietary function are separate and distinct from those employed in its general governmental functions.

Mobil Phils. Exploration vs. Customs Arrastre Service [G.R. No. L-23139, December 17, 1966] PROPRIETARY FUNCTIONS NECESSARY TO THE GOVERNMENTAL PURPOSES OF THE GOVERNMENT ENTITY ARE COVERED BY THE DOCTRINE OF STATE IMMUNITY.

although said arrastre function may be deemed proprietary, it is a necessary incident of the primary and governmental function of the Bureau of Customs, so that engaging in the same does not necessarily render said Bureau liable to suit. For otherwise, it could not perform its governmental function without necessarily exposing itself to suit. Sovereign immunity, granted as to the end, should not be denied as to the necessary means to that end.

Civil Aeronautics Administration vs. CA [G.R. No. L- 51806, November 8, 1988]

THE DOCTRINE OF STATE IMMUNITY DOES NOT APPLY TO GOVERNMENT OWNED AND CONTROLLED CORPORATIONS. - This doctrine has been reaffirmed in the recent case of Malong v. Philippine National Railways [G.R. No. L-49930, August 7, 1985, 138 SCRA 63], where it was held that the Philippine National Railways, although owned and operated by the government, was not immune from suit as it does not exercise sovereign but purely proprietary and business functions. Accordingly, as the CAA was created to undertake the management of airport operations which primarily involve proprietary functions, it

cannot avail of the immunity from suit accorded to government agencies performing strictly governmental functions.

Mun. of San Fernando vs. Firme [G.R. No. 52179, April 8,

1991]

THE SUABILITY OF MUNICIPAL CORPORATIONS IS DETERMINED THROUGH THEIR CHARTER. - Municipal corporations, for example, like provinces and cities, are agencies of the State when they are engaged in governmental functions and therefore should enjoy the sovereign immunity from suit. Nevertheless, they are subject to suit even in the performance of such functions because their charter provided that they can sue and be sued. (Cruz, Philippine Political Law, 1987 Edition, p. 39)

Mun. of San Miguel vs. Fernandez [G.R. No. L-61744, June 25, 1984]

FUNDS OF THE MUNICIPAL CORPORATIONS ARE EXEMPT FROM EXECUTION. - In Tantoco vs. Municipal Council of Iloilo, 49 Phil. 52, it was held that "it is the settled doctrine of the law that not only the public property but also the taxes and public revenues of such corporations cannot be seized under execution against them, either in the treasury or when in transit to it. Judgments rendered for taxes, and the proceeds of such judgments in the hands of officers of the law, are not subject to execution unless so declared by statute.

Mandamus to compel enactment of ordinance is possible.

Mun. of Makati vs. CA [G.R. Nos. 89898-99, October 1,

1990]

REMEDY TO ENFORCE THE LIABILITY OF THE MUNICIPAL CORPORATION Where a municipality fails or refuses, without justifiable reason, to effect payment of a final money judgment rendered against it, the claimant may avail of the remedy of mandamus in order to compel the enactment and approval of the necessary appropriation ordinance, and the corresponding disbursement of municipal funds therefor

Remedy of private citizen against foreign state invoking state immunity

REMEDY OF THE COMPLAINANTS WHEN THE STATE IMMUNITY IS INVOKED. - Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels.

Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the validity of its claims. Of course, the Foreign Office shall first make a determination of the impact of its espousal on the relations between the Philippine government and the Holy See

By taking up the case of one of its subjects and by reporting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights — its right to ensure, in the person of its subjects, respect for the rules of international law.

ARTICLE II – FUNDAMENTAL PRINCIPLES AND STATE POLICIES

Republicanism [Sec. 1. Art. II: “The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them”].

1. Essential features: representation and renovation.

Villavicencio vs. Lukban

IN THE ABSENCE OF ANY LAW, GOOD INTENTIONS CANNOT JUSTIFY THE CURTAILMENT OF FREEDOM. - Law defines power. No official, no matter how high, is above the law. The courts are the forum which functionate to safeguard individual liberty and to punish official transgressors. "The law is the only supreme power in our system of government, and every man who by accepting office participates in its functions is all the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.

One hundred and seventy women, who had lived in the segregated district for women of ill repute in the city of Manila, were by orders of the Mayor of the city of Manila and the chief of police of that city isolated from society and then at night, without their consent and without any opportunity to consult with friends or to defend their rights, were forcibly hustled on board steamers for transportation to regions unknown. No law, order, or regulation authorized the Mayor of the city of Manila or the chief of the police of that city to force citizens of the Philippine Islands to change their domicile from Manila to another locality. Held: That the writ of habeas corpus was properly granted, and that the Mayor of the city of Manila who was primarily responsible for the deportation, is in contempt of court for his failure to comply with the order of the court. These women, despite their being in a sense lepers of society, are nevertheless not chattles, but Philippine citizens protected by the same constitutional guaranties as are other citizens.

2. Manifestations.

a) Ours is a government of laws and not of men

[Villavicencio v. Lukban, 39 Phil 778].

b) Rule of the majority. [Plurality in elections]

c) Accountability of public officials.

d) Bill of Rights.

e) Legislature cannot pass irrepealable laws.

f) Separation of powers.

If there is no express declaration that the Philippines renounces war, can the Philippines engage in aggressive war?

NO. The Incorporation Clause [Sec. 2. Art. II: “The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations"].

By virtue of this clause, our Courts have applied the rules of international law in a number of cases even if such rules had not previously been subject of statutory enactments, because these generally accepted principles of international law are automatically part of our own laws. See Kuroda v. Jalandoni

Such rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory.

Transformation - Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or by incorporation. The transformation method requires that an international law principle be transformed into domestic law through a constitutional mechanism, such as local legislation.

Agustin vs Edu It cannot be disputed then that this Declaration of Principle found in the Constitution possesses relevance: "The

Philippines

international law as part of the law of the land,

Vienna Convention on Road Signs and Signals is impressed with such a character. It is not for this country to repudiate a

commitment to which it had pledged its word. The concept of Pacta sunt servanda stands in the way of such an attitude, which is, moreover, at war with the principle of international morality.

adopts the generally accepted principles of

." The 1968

In all instances, will municipal laws prevail over a treaty? The doctrine of incorporation is applied whenever municipal tribunals or local courts are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both. In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts. In Ichong v. Hernandez, the reason given by the Court was that the Retail Trade National Law was passed in the exercise of the police power which cannot be bargained away through the medium of a treaty or a contract.

Ichong vs. Hernandez Even supposing that the law infringes upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent law, and the same may never curtail or restrict the scope of the police power of the State

Qualify If issue is presented before the local courts, municipal law will prevail/ If before international tribunals, international law.

Conflict between treaty and rule promulgated by the SC?

A treaty may not modify the laws and regulations governing

the admission to the practice of law in the Ph, for the reason that the Executive Department may not encroach upon the constitutional prerogative of the Supreme Court to promulgate rules for admission to the practice of law in the Philippines, the power to repeal, alter or supplement such rules being reserved only to the Congress of the Philippines.

In Gonzales v. Hechanova, 9 SCRA 230 and In Re: Garcia, 2

SCRA 984, on the basis of separation of powers and the rule- making powers of the Supreme Court, respectively. The high tribunal also noted that courts are organs of municipal law and are accordingly bound by it in all circumstances.

However, as applied in most countries, the doctrine of incorporation dictates that rules of international law are given equal standing with, and are not superior to, national legislative enactments. Accordingly, the principle of lex posterior derogat priori takes effect. In states where the

constitution is the highest law of the land, such as the Republic

of the Philippines, both statutes and treaties may be

invalidated if they are in conflict with the constitution [Secretary of Justice v. Lantion, G.R. No. 139465, January 18,

2000, citing Salonga & Yap, Public International Law, 1992 ed.]. The same rule was applied in Philip Morris, Inc. v. Court

of Appeals, where the Supreme Court said that the fact that

international law has been made part of the law of the land does not by any means imply the primacy of international law

over national law in the municipal sphere.

Civilian Supremacy Sec. 3. Art. II: “Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory"].

Mandate of AFP – protect the people and the State

Duty of Government; people to defend the State Sec. 4. Art. II:

“The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service.” Sec. 5. Art. II: “The maintenance of peace and order, the protection of life, liberty and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings Of democracy.”

During martial law? Art. VII Sec. 18 A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

Rationale why compulsory military service is constitutional

SECTION 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof,

all citizens may be required, under conditions provided by law, to render personal military or civil service.

COMPULSORY MILITARY SERVICE IS CONSTITUTIONAL. The National Defense Law, in so far as it establishes compulsory military service, does not go against this constitutional provision but is, on the contrary, in faithful compliance therewith. The duty of the Government to defend the State cannot be performed except through an army. To leave the organization of an army to the will of the citizens would be to make this duty of the Government excusable should there be no sufficient men who volunteer to enlist therein.

Power to establish it is derived from that granted to Congress to declare war and to organize and maintain an army. This is so because the right of the Government to require compulsory military service is a consequence of its duty to defend the State and is reciprocal with its duty to defend the life, liberty, and property of the citizen.

Without violating the Constitution, a person may be compelled by force, if need be, against his will, against his pecuniary interests, and even against his religious or political convictions, to take his place in the ranks of the army of this country, and risk the chance of being shot down in its defense.

This is not deprivation of property without due process of law, because, in its just sense, there is no right of property to an office or employment. The circumstance that these decisions refer to laws enacted by reason of the actual existence of war does not make our case any different, inasmuch as, in the last analysis, what justifies compulsory military service is the defense of the State, whether actual or whether in preparation to make it more effective, in case of need.

Compulsory military service requires presence of war? No. Ro make the army effective, people will render civil service.

Difference between principles and policies The Principles of the Philippine Constitution refers to the basic generalization that is accepted as true. The State Policy in the Philippine constitution refers to the plan of action that is adopted by the government of the Philippines.

SECTION 6. The separation of Church and State shall be inviolable.

Separation between church and state denies influence of religion on human affairs? NO

Aglipay vs. Ruiz

THE CONSTITUTION GUARANTEES RELIGIOUS FREEDOM, AND NOT MERE RELIGIOUS TOLERATION. - The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the necessity of adverting to the historical background of this principle in our country, it is sufficient to say that our history, not to speak of the history of mankind, has taught us that the

union of church and state is prejudicial to both, for occasions might arise when the state will use the church, and the church the state, as a weapon in the furtherance of their respective ends and aims. The Malolos Constitution recognized this principle of separation of church and state in the early stages of our constitutional development; it was inserted in the Treaty of Paris between the United States and Spain of December 10, 1898, reiterated in President McKinley's Instructions to the Philippine Commission, reaffirmed in the Philippine Bill of 1902 and in the Autonomy Act of August 29, 1916, and finally embodied in the Constitution of the Philippines as the supreme expression of the Filipino People. It is almost trite to say now that in this country we enjoy both religious and civil freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to support and defend the Constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized implications. It should be stated that what is guaranteed by our Constitution is religious liberty, not mere religious toleration. Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for religion and is not a denial of its influence in human affairs.

Religion as a profession of faith to an active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their Constitution, implored "the aid of Divine Providence, in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and democracy," they thereby manifested their intense religious nature and placed unfaltering reliance upon Him who guides the destinies of men and nations. The elevating influence of religion in human society is recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects and denominations. Our Constitution and laws exempt from taxation properties devoted exclusively to religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1, subsec. Ordinance appended thereto; Assessment Law, sec. 344, par [c], Adm. Code) sectarian aid is not prohibited when a priest, preacher, minister or other religious teacher or dignitary as such is assigned to the armed forces or to any penal institution, orphanage or leprosarium (sec. 13, subsec. 3 Art. VI, Constitution of the Philippines). Optional religious instruction in the public schools is by constitutional mandate allowed (sec. 5, Art. XIII, Constitution of the Philippines, in relation to sec. 928, Ad. Code). Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and Sundays are made legal holidays (sec. 29, Adm. Code) because of the secular idea that their observance is conducive to beneficial moral results. The law allows divorce but punishes polygamy and bigamy; and certain crimes against religious worship are considered crimes against the fundamental laws of the state (see arts. 132 and 133, Revised Penal Code).